Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable. (b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes. (c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that: (i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; (ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; (iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral; (v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents; (vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”; (vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws; (viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated; (ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement; (x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; (xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC; (xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act; (xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; and
Appears in 2 contracts
Sources: Note Purchase Agreement (Trinity Industries Inc), Note Purchase Agreement (Trinity Industries Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Date:precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters 91199526 Conn’s 2017-B: Note Purchase Agreement under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (ii) since December 7, 2017 there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Vice Presidenttransfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Initial Purchasers and their counsel, Issuer pursuant to the effect that:
Purchase and Sale Agreement and (iiv) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered grant by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted Trustee under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create of a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each interest of the Issuer and TILC has in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been duly incorporated or formed, and is an existing corporation or limited liability company will be submitted for filing in good standing under all applicable governmental offices reflecting the laws release from any applicable liens of the jurisdiction of its incorporation or formationReceivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and from each of the Issuer Depositor, Conn Appliances and TILC is duly qualified the Seller, a certificate executed by a secretary or assistant secretary thereof to do business as a foreign corporation or limited liability company in which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing in all other jurisdictions in which its ownership or lease of property or standing, (iii) applicable resolutions and (iv) incumbency certifications for the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;related entity.
(vil) The Issuer is not andYou shall have received one or more negative assurance letters from ▇▇▇▇▇▇, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)”, the Class B Notes shall have been rated “BB-(sf)” and the Class C Notes shall have been rated “B-(sf)” by ▇▇▇▇▇ Bond Rating 91199526 Conn’s 2017-B: Note Purchase Agreement Agency, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such counsel’s letterrating, which informationsuch rating carries a “stable” or more favorable outlook, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and you shall have received a letter dated as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this AgreementDate from Kroll, or (ii) other evidence satisfactory to you, confirming that the resales of the Offered Purchased Notes by the Initial Purchasers in the manner contemplated by this Agreementhave such ratings and, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”if applicable, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 2 contracts
Sources: Note Purchase Agreement (Conns Inc), Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (A) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (B) since January 31, 2017 there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (A) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (B) the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (C) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (D) the grant by the Issuer to the Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) the Vice Presidentcertificates of good standing, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers applicable resolutions and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee incumbency certifications for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;related entity.
(vl) Each of the Issuer and TILC has been duly incorporated You shall have received one or formedmore negative assurance letters from ▇▇▇▇▇▇, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, outlook.
(n) The Class A Notes shall have been rated “BBB”, the Class B Notes shall have been rated “BB-” and the Class C Notes shall have been rated “B-” by ▇▇▇▇▇ Bond Rating Agency, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such counsel’s letterrating, which informationsuch rating carries a “stable” or more favorable outlook, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and you shall have received a letter dated as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this AgreementDate from Kroll, or (ii) other evidence satisfactory to you, confirming that the resales of the Offered Purchased Notes by the Initial Purchasers in the manner contemplated by this Agreementhave such ratings and, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”if applicable, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (B) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (C) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (A) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (B) since September 30, 2015 there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (A) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (B) the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (C) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (D) the grant by the Issuer to the Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) the Vice Presidentcertificates of good standing, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers applicable resolutions and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee incumbency certifications for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;related entity.
(vl) Each of the Issuer and TILC has been duly incorporated You shall have received one or formedmore negative assurance letters from ▇▇▇▇▇▇, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BB” and the Class C Notes shall have been rated “B” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (ii) since July 6, 2022, there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Vice Presidenttransfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Initial Purchasers and their counsel, Issuer pursuant to the effect that:
Purchase and Sale Agreement and (iiv) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered grant by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted Trustee under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create of a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each interest of the Issuer and TILC has in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been duly incorporated or formed, and is an existing corporation or limited liability company will be submitted for filing in good standing under all applicable governmental offices reflecting the laws release from any applicable liens of the jurisdiction of its incorporation or formationReceivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and from each of the Issuer Depositor, Conn Appliances and TILC is duly qualified the Seller, a certificate executed by a secretary or assistant secretary thereof to do business as a foreign corporation or limited liability company in which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing in all other jurisdictions in which its ownership or lease of property or standing, (iii) applicable resolutions and (iv) incumbency certifications for the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;related entity.
(vil) The Issuer is not andYou shall have received one or more negative assurance letters from ▇▇▇▇▇▇, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliatesIssuer, the effect of any such attackDepositor, outbreakConn Appliances, escalationConn’s, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC Inc. or any of their respective subsidiaries, or any of their respective properties that, if determined adversely in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable to market the Purchased Notes on the terms and in the manner contemplated in the Preliminary Offering Memorandum.
(c) You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) M▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, TILC shall have delivered (i) an opinion or any opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of their respective subsidiariesthe Notes, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability security interest of the Issuer or TILC to perform their respective obligations under and the IndentureTrustee, this Agreementrespectively, or any other Transaction Document or which are otherwise material in the context Receivables Trust Estate, the security interest of the sale Receivables Trust in the Trust Estate, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the Offered Notestransfer of Receivables by the Seller and the Depositor; and no such actions(D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, suits the Depositor or proceedings are threatened orthe Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to such counselthe Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date. Conn’s knowledge, contemplated;2018-A: Note Purchase Agreement 16
(ixe) The executionYou shall have received an opinion addressed to you and the Depositor of K&L Gates, delivery LLP, counsel to the Trustee, dated the Closing Date and performance reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the IndentureDepositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the issuance Closing Date and sale of (ii) since August 6, 2018, there has not occurred any material adverse change in or affecting the Offered Notes and compliance with the terms and provisions thereof will not result in a breach condition, financial or violation of any of the terms and provisions ofotherwise, or constitute a default underin the earnings, any statute, any rule, regulation business or order operations of any governmental agency or body or any court having jurisdiction over the Issuer, TILCthe Depositor, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subjectConn Appliances, or the organizational or formation documents Seller, except as disclosed to you in writing prior to the date of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;Preliminary Offering Memorandum.
(xi) Such counsel You shall have no reason received evidence reasonably satisfactory to believe that you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the Preliminary Offering Circular or transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Final Offering Document, or any amendment or supplement thereto, as transfer of the Applicable Time and as interest of the Closing DateDepositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, contained any untrue statement of a material fact or omitted to state any material fact necessary to make (iii) the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as transfer of the Applicable Time and as interest of the Closing Date, contained any untrue statement of a material fact or omitted Depositor in the Receivables Trust Certificate to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer pursuant to the Purchase and TILC;
Sale Agreement and (xii) It is not necessary in connection with (iiv) the offer, sale and delivery of the Offered Notes grant by the Issuer to the Initial Purchasers pursuant Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to this Agreementyou that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel. Conn’s 2018-A: Note Purchase Agreement 17
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;related entity.
(xiiil) The statements in You shall have received one or more negative assurance letters from M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP with respect to the Preliminary Offering Circular Memorandum and the Offering Circular under Memorandum in form and substance reasonably satisfactory to the captions Initial Purchasers.
(m) The Class A Notes shall have been rated “The IssuerBBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
(n) The RailcarsClass A Notes shall have been rated “BBB-(sf)”, the Class B Notes shall have been rated “The LesseesBB-(sf)” and the Class C Notes shall have been rated “B-(sf)” by K▇▇▇▇ Bond Rating Agency, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries a “The Leases”stable” or more favorable outlook, “TILC”, “The Servicer”, “Description and you shall have received a letter dated as of the Servicing Agreement”Closing Date from Kroll, “Description of or other evidence satisfactory to you, confirming that the Administrative Services Agreement”Purchased Notes have such ratings and, “Description of the Purchase and Contribution Agreement”if applicable, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) (A) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party, (B) Trinity Rail Leasing Warehouse Trust (“TRLWT”) is a statutory trust duly formed, validly existing and in good standing under the Delaware Statutory Trust Act, with power and authority to own its properties and to conduct its business as described in the General Disclosure Package;. TRLWT is duly qualified to do business as a foreign trust in good standing in any jurisdiction other than the State of Delaware in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party, and (C) Trinity Rail Leasing VII LLC (“TRL VII”) is a limited liability company duly formed, validly existing and in good standing under the laws of the state of Delaware, with power and authority to own its properties and to conduct its business as described in the General Disclosure Package; TRL VII is duly qualified to do business as a foreign limited liability company in good standing in any jurisdiction other than the State of Delaware in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer Issuer, TRLWT, TRL VII or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer Issuer, TRLWT, TRL VII or TILC, as applicable, enforceable against the Issuer Issuer, TRLWT, TRL VII or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(viivi) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance of the Offered Notes or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viiivii) There are no pending actions, suits or proceedings against or affecting the Issuer, TRLWT, TRL VII, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TRLWT, TRL VII, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer Issuer, TRLWT, TRL VII or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ixviii) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer Issuer, TRLWT, TRL VII or TILC is a party, and this Agreement and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TRLWT, TRL VII, TILC, or any of their properties, or any agreement or instrument to which the Issuer Issuer, TRLWT, TRL VII or TILC is a party or by which the Issuer Issuer, TRLWT, TRL VII or TILC is bound or to which any of the properties of the Issuer Issuer, TRLWT, TRL VII or TILC is subject, or the organizational or formation documents of the Issuer Issuer, TRLWT, TRL VII or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(xix) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xix) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xiixi) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiiixii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of the Hedge Agreements”, “Description of the Liquidity Facility DocumentsFacility” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; and;
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the several Initial Purchasers to purchase and pay for the Offered Notes Securities will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCthe Guarantors herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Issuer and TILC Guarantors made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC the Guarantors of its their obligations hereunder in all material respects and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing DateThe Representative, on behalf of the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm customary “comfort letter”, dated the date of this Agreement, of KPMG LLP (“KPMG”) and Ernst & Young LLP (“E&Y”), in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, concerning certain financial information with respect to Holdings and its subsidiaries set forth in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableGeneral Disclosure Package.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; Securities, (ii) any downgrading in the rating of any debt securities of TILC the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC any of its subsidiaries has been placed on negative outlook; , (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial Purchasers or any of their affiliatesRepresentative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered NotesSecurities, whether in the primary market or in respect of dealings in the secondary market; , (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, Exchange or any setting of minimum prices for trading on such exchange; , (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal federal or New York authorities; , (viivi) any major disruption of settlements of securities securities, payment or clearance services in the United States; , or (viiivii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the Initial Purchasers or any of their affiliatesRepresentative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesSecurities.
(cd) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “& G▇▇▇▇▇▇▇ Rule”;LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(viie) No consentThe Initial Purchasers shall have received an opinion, approvaldated the Closing Date, authorization or order offrom L▇▇▇▇▇▇ & Gage LLP, or filing with, any governmental agency or body or any court is required Missouri counsel for the consummation Issuer, in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from A▇▇▇▇ & R▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the transactions contemplated by this Agreement in connection with Issuer, the issuance or sale validity of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the IndentureSecurities, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement Final Offering Memorandum and the issuance General Disclosure Package, the exemption from registration for the offer and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes Securities by the Issuer to the Initial Purchasers pursuant and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(j) The Initial Purchasers shall have received a letter, dated the Closing Date, of KPMG and E&Y that meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Memorandum.
(k) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(l) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information as they may reasonably request.
(m) All agreements set forth in the blanket representation letter of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with.
(n) On or prior to the Closing Date, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents.
(o) On or prior to the Closing Date, all documents and instruments, including UCC financing statements, required by law or reasonably requested by the Notes Collateral Agent to be filed, registered or recorded to create liens intended to be created by the Indenture and the Security Documents and perfect such liens to the extent required by, and with the priority required by, the Collateral Agreement and the Intercreditor Agreement, shall have been filed, registered or recorded or delivered to the Notes Collateral Agent.
(p) All filing fees, taxes and other amounts payable in connection with filings, recordings and registrations shall have been paid or payment by the Issuer provided for to the reasonable satisfaction of the Notes Collateral Agent.
(q) On or prior to the Closing Date, the Initial Purchasers shall have received the results of lien searches, conducted by the lien search service previously identified to counsel for the Representative or another search service reasonably satisfactory to the Representative, and the Representative shall be satisfied that no material liens are outstanding on the property or assets of the Issuer and the Guarantors, other than any such liens (i) which are permitted under the Indenture or (ii) as to which the resales Representative have received documentation reasonably satisfactory to it evidencing the termination of such liens.
(r) On or prior to the Offered Notes by Closing Date, the Initial Purchasers shall have received a completed certificate in the manner contemplated by this Agreement, form attached to register the Offered Notes under Collateral Agreement (the Securities Act or “Perfection Certificate”) to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description be dated as of the Servicing Agreement”Closing Date, “Description executed by an executive officer of the Administrative Services Agreement”Issuer, “Description together with all attachments contemplated thereby, which shall be correct and complete as of the Purchase Closing Date. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and Contribution Agreement”, “Description documents required hereunder as the Initial Purchasers reasonably request. The Representative may in their sole discretion waive on behalf of the Insurance Agreement”, “Description of Hedge Agreements”, “Description Initial Purchasers compliance with any conditions to the obligations of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andInitial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer Company and TILC, TTC Merger Co to the accuracy of the statements of officers of the Issuer Company and TILC TTC Merger Co herein made pursuant to the provisions hereof, to the performance by each of the Issuer Company and TILC TTC Merger Co of its obligations hereunder and to the following additional conditions precedent precedent:
(a) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of Coopers & ▇▇▇▇▇▇▇ confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") and substantially in the form of Exhibit D hereto, or otherwise in form and substance reasonably satisfactory to the Initial Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated such the Closing Date, of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Initial Issuers substantially in the form of Exhibit A hereto, or otherwise in form and substance reasonably satisfactory to the Initial Purchasers.
(c) The Initial Purchasers shall have received an opinion, dated such the Closing Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Initial Issuers, substantially in the form of Exhibit B hereto, or otherwise in form and substance reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated such the Closing Date, of ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇, Esq., general counsel of the Company, substantially in the form of Exhibit C hereto, or otherwise in form and substance reasonably satisfactory to the Initial Purchasers.
(e) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the validity of the Notes, the Offering Circular, the exemption from registration for the offer and sale of the Notes by the Company and TTC Merger Co to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may reasonably require, and the Company and TTC Merger Co shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely as to the incorporation of the Company and all other matters governed by Massachusetts law upon the opinion of ▇▇▇▇ and ▇▇▇▇ LLP referred to above.
(f) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of their chief executive officer or any vice president and a principal financial or accounting officer in which such officers, to the best of their knowledge and after reasonable investigation shall state that (i) as of the Closing Date, the representations and warranties of the Company and TTC Merger Co in this Agreement are true and correct in all material respects, the Company and TTC Merger Co have in all material respects complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date:, (ii) the Offering Circular did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date thereof, no event has occurred which should have been set forth in a supplement or amendment to the Offering Circular and (iii) subsequent to the date of the most recent financial statements contained in the Offering Circular, there has been no material adverse change, nor any development or event that, in his reasonable judgment, would reasonably be expected to result in a material adverse change, in the condition (financial or other), business, properties results of operations or business of the Company and its subsidiaries taken as a whole, except as set forth in or contemplated by the Offering Circular or as described in such certificate.
(ag) On the Closing Date, the The Initial Purchasers shall have received from a third party letter, dated the Closing Date, of Coopers & ▇▇▇▇▇▇▇ which meets the requirements of subsection (a) of this Section 6, except that is the specified date referred to in such subsection will be a nationally recognized accounting firm reasonably satisfactory date not more than three business days prior to the Initial Purchasers a letter or letters, in Closing Date for the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as purposes of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicablethis subsection.
(bh) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer or member of TTC and Dynatech.
(i) The recapitalization of Dynatech and the financings and transactions related thereto shall have been consummated substantially as described in the Offering Circular.
(j) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: occurred (i) any change, or any development or event involving that would reasonably be expected to result in a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC Company and its subsidiaries subsidiaries, taken as one enterprise a whole, which, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and makes it impractical or inadvisable impracticable to proceed with the completion of the offering contemplated herein or the sale resale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter over-the- counter market; (viiii) any banking moratorium declared by U.S. Federal or New York authorities; or (viiiv) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable impracticable to proceed with completion of the offering contemplated herein or sale the resale of and or payment for the Offered Notes.
(ck) The Initial Purchasers Company and TTC Merger Co shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable furnished to the Initial Purchasers such additional documents and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (opinions as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee they may reasonably require for the benefit purpose of the holders of the holders of the Offered Notes from time enabling them to time will have, pass upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with as herein contemplated, or in order to evidence the terms and provisions thereof will not result in a breach or violation accuracy of any of the terms and provisions ofrepresentations or warranties, or constitute a default under, any statute, any rule, regulation or order the fulfillment of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties conditions, herein contained. The Company, TTC Merger Co and TTC will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request. CSFBC may in its sole discretion waive on behalf of the Issuer or TILC is subject, or Initial Purchasers compliance with any conditions to the organizational or formation documents obligations of the Issuer or TILCInitial Purchasers hereunder, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as whether in respect of the Closing Date, contained any untrue statement of a material fact Date or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andotherwise.
Appears in 1 contract
Sources: Purchase Agreement (Dynatech Corp)
Conditions of the Obligations of the Initial Purchasers. The respective obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties herein on the part of the Issuer Company and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofGuarantors contained herein, to the performance by the Company and the Guarantors of their obligations hereunder, and to each of the Issuer following additional terms and TILC conditions.
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall have been true and correct on the date hereof and shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Company and the Guarantors shall have performed or complied in all material respects with all of the agreements contained herein and required to be performed or complied with by them at or prior to the Closing Date.
(b) Each of the Initial Purchasers shall have received on the Closing Date an opinion dated the Closing Date, from (i) ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, outside counsel for the Company and the Guarantors substantially in the form attached hereto as Exhibit 5(b)(1) and (ii) McAfee & ▇▇▇▇, special counsel for the Company and the Guarantors substantially in the form attached hereto as Exhibit 5(b)(2).
(c) Each of the Initial Purchasers shall have received on the Closing Date an opinion from regulatory counsel for the Company and the Guarantors substantially in the form attached hereto as Exhibit 5(c).
(d) The Initial Purchasers shall have received from Shearman & Sterling LLP, counsel for the Initial Purchasers, such opinion or opinions, dated such Closing Date, with respect to the issuance and sale of the Notes, the Guarantees, the Offering Documents and other related matters as the Initial Purchasers may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) On the Closing Date, the Company, the Guarantors, the Collateral Trustees and the other parties thereto shall have executed and delivered each of the Security Documents together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Collateral Trustees may deem necessary or desirable in order to protect first and second priority liens and security interests created under the 2011 Notes Security Agreement or second and third priority liens and security interests created under the 2012 Notes Security Agreement; and
(B) evidence of the insurance required by the terms of the Collateral Documents.
(f) On the Closing Date, the Security Documents shall be in full force and effect and the Collateral Trustees for the benefit of the Secured Parties shall have a valid and perfected security interest in respect of the Collateral securing the obligations of the Company under the Indentures and such security interest will not be subject to or subordinated to any Liens other than Permitted Liens.
(g) On the Closing Date, the two intercompany notes, each dated April 1, 2004, issued for an amount of $298,504,000 and $594,000,000 respectively, by the Company for the benefit of Parent (the "Intercompany Notes") shall have been duly and validly amended in a manner satisfactory to the Initial Purchasers and their counsel in order to provide that (i) such Intercompany Notes be subordinated to the Notes and the Amended Credit Facility in the same manner as such Intercompany Notes were subordinated to the Existing Credit Facility and (ii) the maturity date of such Intercompany Notes be changed to a date that is the 91st day after the maturity of the 2012 Notes.
(h) Concurrently with the closing of the Offering, (i) all amounts outstanding under the Existing Credit Facility shall be fully repaid and (ii) the Company, the Guarantors and the lenders named therein shall have entered into the Amended Credit Facility.
(i) The Notes and the Guarantees shall have been approved for trading in PORTAL(R).
(j) The Initial Purchasers shall have received from KPMG LLP a letter, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are certified independent public accountants with respect to Parent under Rule 101 of the AICPA's Code of Professional Conduct and its interpretations and rulings and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(k) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "Initial Letter"), Parent shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of such accountants, addressed to the Initial Purchasers and dated such Closing Date (i) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the Initial Letter and (ii) confirming in all material respects the conclusions and findings set forth in the Initial Letter.
(l) The Initial Purchasers shall have received a certificate from the Company, dated the Closing Date, signed by its Chairman of the Board, President or a Vice President and its Chief Financial Officer stating that the representations and warranties of the Company in Section 1 are true and correct as of such Closing Date; the Company has complied with all of its obligations hereunder and agreements contained herein to the following additional conditions precedent be complied with on or prior to the Closing Date:; and all the conditions on the part of the Company to be performed or satisfied under this Agreement have been satisfied.
(am) On the Closing Date, the The Initial Purchasers shall have received a certificate from a third party each Guarantor, dated the Closing Date, signed by an executive officer of each Guarantor stating that is a nationally recognized accounting firm reasonably satisfactory the representations and warranties of such Guarantor in Section 1 are true and correct as of such Closing Date; such Guarantor has complied with all of its agreements contained herein to be complied with on or prior to the Initial Purchasers a letter Closing Date; and all the conditions on the part of such Guarantor to be performed or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as satisfied under this Agreement have been satisfied.
(i) None of the review date or Parent nor any Subsidiary shall have sustained since the date of the Preliminary latest audited financial statements included or incorporated by reference in the Offering Circular Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of Parent or any Subsidiary or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of Parent and any Subsidiary, otherwise than as set forth or contemplated in the Offering CircularMemorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as applicableto make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes and the Guarantees being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Documents.
(bo) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: Agreement (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any no downgrading shall have occurred in the rating accorded any of any debt Parent's or the Company's securities of TILC by any “"nationally recognized statistical rating organization” (", as that term is defined by the Commission for purposes of Rule 436(g436(g)(2) of the rules and regulations of the Commission under the Securities Act), or any public announcement that any Act and (ii) such organization shall not have publicly announced that it has under surveillance or review review, with possible negative implications, its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) Parent's or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received Company's securities. All opinions, dated letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andPurchasers.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC ▇▇▇▇’▇, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (ii) since August 2, 2023, there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Vice Presidenttransfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Initial Purchasers and their counsel, Issuer pursuant to the effect that:
Purchase and Sale Agreement and (iiv) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered grant by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted Trustee under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create of a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each interest of the Issuer and TILC has in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been duly incorporated or formed, and is an existing corporation or limited liability company will be submitted for filing in good standing under all applicable governmental offices reflecting the laws release from any applicable liens of the jurisdiction of its incorporation or formationReceivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and from each of the Issuer Depositor, Conn Appliances and TILC is duly qualified the Seller, a certificate executed by a secretary or assistant secretary thereof to do business as a foreign corporation or limited liability company in which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing in all other jurisdictions in which its ownership or lease of property or standing, (iii) applicable resolutions and (iv) incumbency certifications for the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;related entity.
(vil) The Issuer is not andYou shall have received one or more negative assurance letters from ▇▇▇▇▇▇, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the several Initial Purchasers to purchase and pay for the Offered Notes Securities will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCthe Guarantors herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Issuer and TILC Guarantors made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC the Guarantors of its their obligations hereunder in all material respects and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing DateUBS, on behalf of the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm customary “comfort letter”, dated the date of this Agreement, of KPMG LLP (“KPMG”) and Ernst & Young LLP (“E&Y”), in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, concerning certain financial information with respect to Holdings and its subsidiaries set forth in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableGeneral Disclosure Package.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; Securities, (ii) any downgrading in the rating of any debt securities of TILC the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC any of its subsidiaries has been placed on negative outlook; , (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the Initial Purchasers or any of their affiliatesincluding UBS, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered NotesSecurities, whether in the primary market or in respect of dealings in the secondary market; , (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, Exchange or any setting of minimum prices for trading on such exchange; , (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal federal or New York authorities; , (viivi) any major disruption of settlements of securities securities, payment or clearance services in the United States; , or (viiivii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers or any of their affiliatesincluding UBS, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesSecurities.
(cd) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “& G▇▇▇▇▇▇▇ Rule”;LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(viie) No consentThe Initial Purchasers shall have received an opinion, approvaldated the Closing Date, authorization or order offrom L▇▇▇▇▇▇ & G▇▇▇ ▇.▇., or filing with, any governmental agency or body or any court is required Missouri counsel for the consummation Issuer, in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from A▇▇▇▇ & R▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the transactions contemplated by this Agreement in connection with Issuer, the issuance or sale validity of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the IndentureSecurities, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement Final Offering Memorandum and the issuance General Disclosure Package, the exemption from registration for the offer and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes Securities by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) and the resales of the Offered Notes by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in the manner contemplated by this Agreementwhich such officers, to register the Offered Notes under best of their knowledge and after reasonable investigation, shall state on behalf of the Securities Act Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The Closing Date, and that, subsequent to the date of the most recent financial statements in the Preliminary General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(j) The Initial Purchasers shall have received a letter, dated the Closing Date, of KPMG and E&Y that meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular Memorandum.
(k) The Issuer and the Offering Circular under Guarantors shall have executed and delivered the captions “Registration Rights Agreement and the Indenture.
(l) The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description Initial Purchasers shall have been furnished with wiring instructions for the application of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description proceeds of the Offered Notes Securities in accordance with this Agreement and the Master Indenture”, insofar such other information as they purport may reasonably request.
(m) All agreements set forth in the blanket representation letter of the Issuer to summarize certain terms DTC relating to the approval of the Offered Notes Securities by DTC for “book-entry” transfer shall have been complied with.
(n) The respective obligations of the Issuer and the applicable Transaction Documents, constitute a fair summary Guarantors and of the provisions purported Initial Purchasers hereunder are subject to be summarized; andthe condition that Ply Gem Prime, Holdings, the Issuer and U.S. Bank National Association, as escrow agent, enter into the Escrow Agreement in form and substance reasonably satisfactory to the Initial Purchasers, deposit approximately $218.8 million aggregate principal amount of the 9% Notes with the escrow agent under the Escrow Agreement prior to the Closing Date and agree to effect the other transactions contemplated by the Escrow Agreement. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. UBS may in its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC ▇▇▇▇’▇, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (ii) since January 11, 2024, there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Vice Presidenttransfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Initial Purchasers and their counsel, Issuer pursuant to the effect that:
Purchase and Sale Agreement and (iiv) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered grant by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted Trustee under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create of a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each interest of the Issuer and TILC has in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been duly incorporated or formed, and is an existing corporation or limited liability company will be submitted for filing in good standing under all applicable governmental offices reflecting the laws release from any applicable liens of the jurisdiction of its incorporation or formationReceivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and from each of the Issuer Depositor, Conn Appliances and TILC is duly qualified the Seller, a certificate executed by a secretary or assistant secretary thereof to do business as a foreign corporation or limited liability company in which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing in all other jurisdictions in which its ownership or lease of property or standing, (iii) applicable resolutions and (iv) incumbency certifications for the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;related entity.
(vil) The Issuer is not andYou shall have received one or more negative assurance letters from ▇▇▇▇▇▇, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or TILC and its subsidiaries taken as one enterprise whichany of their respective subsidiaries, that, in the reasonable judgment of the Initial Purchasers or any of their affiliatesPurchasers, is material and adverse and that makes it impractical or inadvisable impracticable to proceed with completion of market the offering or Purchased Notes on the sale of terms and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, manner contemplated in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPreliminary Offering Memorandum.
(c) The Initial Purchasers You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the Receivables Trust in the Trust Estate, (iB) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (B) certain matters relating to the treatment of the transfer of Receivables by the Seller and the Depositor; and (C) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, the Depositor or the Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(e) You shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Price P.C.& Finger, P.A., counsel for to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (A) the representations and warranties made by it in the other Transaction Documents and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the Closing Date and (B) since September 30, 2015 there has not occurred any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, or the Seller, except as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (A) the transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (B) the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (C) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (D) the grant by the Issuer to the Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) the Vice Presidentcertificates of good standing, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers applicable resolutions and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee incumbency certifications for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;related entity.
(vl) Each of the Issuer and TILC has been duly incorporated You shall have received one or formedmore negative assurance letters from ▇▇▇▇▇▇, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇ & ▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection LLP with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely respect to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or (ii) the Final Offering Documentmore favorable outlook, or any amendment or supplement thereto, as of the Applicable Time and you shall have received a letter dated as of the Closing DateDate from Fitch, contained any untrue statement of a material fact or omitted other evidence satisfactory to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe you, confirming that the information specified in a schedulePurchased Notes have such ratings and, if anyapplicable, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.your counsel. Conn’s 2021-A: Note Purchase Agreement
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliatesIssuer, the effect of any such attackDepositor, outbreakConn Appliances, escalationConn’s, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC Inc. or any of their respective subsidiaries, or any of their respective properties that, if determined adversely in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable to market the Purchased Notes on the terms and in the manner contemplated in the Preliminary Offering Memorandum.
(c) You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) M▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, TILC shall have delivered (i) an opinion or any opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of their respective subsidiariesthe Notes, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability security interest of the Issuer or TILC to perform their respective obligations under and the IndentureTrustee, this Agreementrespectively, or any other Transaction Document or which are otherwise material in the context Receivables Trust Estate, the security interest of the sale Receivables Trust in the Trust Estate, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the Offered Notestransfer of Receivables by the Seller and the Depositor; and no such actions(D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, suits the Depositor or proceedings are threatened orthe Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to such counsel’s knowledge, contemplated;the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(ixe) The executionYou shall have received an opinion addressed to you and the Depositor of K&L Gates, delivery LLP, counsel to the Trustee, dated the Closing Date and performance reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the IndentureDepositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the issuance Closing Date and sale of (ii) since November 10, 2021, there has not occurred any material adverse change in or affecting the Offered Notes and compliance with the terms and provisions thereof will not result in a breach condition, financial or violation of any of the terms and provisions ofotherwise, or constitute a default underin the earnings, any statute, any rule, regulation business or order operations of any governmental agency or body or any court having jurisdiction over the Issuer, TILCthe Depositor, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subjectConn Appliances, or the organizational or formation documents Seller, except as disclosed to you in writing prior to the date of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Preliminary Offering Memorandum. Conn’s 2021-A: Note Purchase Agreement;
(xi) Such counsel You shall have no reason received evidence reasonably satisfactory to believe that you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the Preliminary Offering Circular or transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Final Offering Document, or any amendment or supplement thereto, as transfer of the Applicable Time and as interest of the Closing DateDepositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, contained any untrue statement of a material fact or omitted to state any material fact necessary to make (iii) the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as transfer of the Applicable Time and as interest of the Closing Date, contained any untrue statement of a material fact or omitted Depositor in the Receivables Trust Certificate to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer pursuant to the Purchase and TILC;
Sale Agreement and (xii) It is not necessary in connection with (iiv) the offer, sale and delivery of the Offered Notes grant by the Issuer to the Initial Purchasers pursuant Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to this Agreementyou that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;related entity.
(xiiil) The statements in You shall have received one or more negative assurance letters from M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP with respect to the Preliminary Offering Circular Memorandum and the Offering Circular under Memorandum in form and substance reasonably satisfactory to the captions Initial Purchasers.
(m) The Class A Notes shall have been rated “The IssuerBBBsf”, the Class B Notes shall have been rated “The RailcarsBBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “The Lessees”stable” or more favorable outlook, “The Leases”, “TILC”, “The Servicer”, “Description and you shall have received a letter dated as of the Servicing Agreement”Closing Date from Fitch, “Description of or other evidence satisfactory to you, confirming that the Administrative Services Agreement”Purchased Notes have such ratings and, “Description of the Purchase and Contribution Agreement”if applicable, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The respective obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties herein on the part of the Issuer Company and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofGuarantors contained herein, to the performance by the Company of its obligations hereunder, and to each of the Issuer following additional terms and TILC of its obligations hereunder conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the following additional conditions precedent Company on or prior to the Closing Date:Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of Weil, Gotshal & Manges LLP, counsel for the Initial Purchasers, is material or ▇▇▇▇▇ to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(ab) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall have been true and correct on the date hereof and shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Company and each of the Guarantors shall have performed or complied in all material respects with all of the agreements contained herein and required to be performed or complied with by them at or prior to the Closing Date.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Operative Documents, the Offering Documents, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Each of the Initial Purchasers shall have received on the Closing Date an opinion, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, dated the Closing Date, from counsel for the Company and the Guarantors substantially in the form attached hereto as Exhibit 5(d).
(e) Each of the Initial Purchasers shall have received on the Closing Date an opinion, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, dated the Closing Date, from David Waskey, general counsel to the Company and the Guarantors ▇▇▇▇▇▇▇▇▇▇▇ly in the form attached hereto as Exhibit 5(e).
(f) The Initial Purchasers shall have received from Weil, Gotshal & Manges LLP, counsel for the Initial Purchasers, such opinion or ▇▇▇▇▇ons, dated such Closing Date, with respect to the issuance and sale of the Notes and the Guarantees, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) On the Closing Date, the Company, the Guarantors and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(h) On the Closing Date, the Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(i) On the Closing Date, each of the Company, the Trustee and DTC shall have executed and delivered the DTC Letter of Representations and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(j) On or before the Closing Date, each of the Company and the Credit Facility Guarantors shall have entered into the New Credit Facility and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. There shall not exist at and as of the Closing Date any conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default), after giving effect to the issuance of the Notes and Guarantees, under the New Credit Facility and the commitments under the Existing Credit Facility have been terminated.
(k) The Notes shall have been approved for trading in PORTAL.
(l) The Initial Purchasers shall have received from KPMG, LLP a third party letter, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are certified independent public accountants with respect to the Company under Rule 101 of the AICPA's Code of Professional Conduct and its interpretations and rulings and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a nationally recognized accounting date not more than five days prior to the date hereof), the conclusions and findings of such firm reasonably satisfactory with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(m) With respect to the letter of KPMG, LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "INITIAL LETTER"), the Company shall have furnished to the Initial Purchasers a letter or letters(the "BRING-DOWN LETTER") of such accountants, in addressed to the form heretofore agreed to regarding the Preliminary Offering Circular Initial Purchasers and Offering Circulardated such Closing Date (i) stating, each dated as of the review date or the date of the Preliminary bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Circular or Offering CircularMemorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (ii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(n) The Initial Purchasers shall have received (a) a certificate from the Company, dated the Closing Date, signed by its President and Chief Executive Officer and its Executive Vice President and Chief Financial Officer and (b) a certificate from each Guarantor, dated Closing Date, signed by its president stating, as applicable, that:
(i) the representations, warranties and agreements of the Company and the Guarantors in Section 1 are true and correct as of such Closing Date; the Company and the Guarantors have complied with all their agreements contained herein; and the conditions set forth in Sections 5(q) and 5(r) have been fulfilled; and
(ii) they have carefully examined the Preliminary Offering Memorandum and the Offering Memorandum and, in their opinion (A) the Preliminary Offering Memorandum and Offering Memorandum, as of their respective dates, did not, and the Offering Memorandum, as of the Closing Date, does not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to Offering Memorandum.
(bo) Weil, Gotshal & Manges LLP shall have been furnished with such other documents ▇▇▇ ▇▇inions, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Agreement and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(i) Other than as set forth in the Offering Memorandum, neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes and the Guarantees being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(q) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: Agreement (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any no downgrading shall have occurred in the rating of any debt securities of TILC accorded the Notes by any “"nationally recognized statistical rating organization” (", as that term is defined by the Commission for purposes of Rule 436(g436(g)(2) of the rules and regulations of the Commission under the Securities Act)Act and (ii) such organization shall not have publicly announced, or any public announcement privately informed the Company, that any such organization it has under surveillance or review review, with possible negative implications, its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or Company's debt securities.
(r) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; following: (ivi) any material suspension or material limitation of trading in securities generally on the New York Stock ExchangeExchange or the Nasdaq National Market or in the over-the-counter market, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of in any securities of the Issuer or TILC or any of its affiliates Company on any exchange or in the over‑the‑counter over-the-counter market; , shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (viii) any a banking moratorium shall have been declared by U.S. Federal federal or New York state authorities; , (viiiii) any major disruption the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of settlements a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of securities or clearance services international conditions on the financial markets in the United States; or (viiiStates shall be such) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency ifas to make it, in the sole judgment of the Initial Purchasers or any of their affiliatesPurchasers, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical impracticable or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws delivery of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of Guarantees being delivered on the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with Closing Date on the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular Memorandum. All opinions, letters, evidence and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport certificates mentioned above or elsewhere in this Agreement shall be deemed to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of be in compliance with the provisions purported hereof only if they are in form and substance reasonably satisfactory to be summarized; andcounsel for the Initial Purchasers.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Offered Notes Securities on the Closing Date will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCCompany herein (as though made on the Closing Date), to the accuracy of the statements of Company officers of the Issuer and TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC Company of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers The Representative shall have received from a third party that is a nationally recognized accounting firm letter, addressed to the Initial Purchasers, dated the date hereof, of PricewaterhouseCoopers LLP in form and substance reasonably satisfactory to the Initial Purchasers a letter with respect to certain financial information included or letters, incorporated by reference in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableGeneral Disclosure Package.
(b) The Representative shall have received a letter, addressed to the Initial Purchasers, dated the date hereof, of Ernst & Young LLP in form and substance reasonably satisfactory to the Initial Purchasers with respect to certain financial information included or incorporated by reference in the General Disclosure Package.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC Company and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliatesRepresentative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered NotesSecurities; (ii) any downgrading in the rating of any debt securities of TILC the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(gSection 3(a)(62) under the Securities Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliatesRepresentative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered NotesSecurities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Issuer or TILC or any of its affiliates Company on any exchange or in the over‑the‑counter over-the-counter market; (vi) any banking moratorium declared by U.S. Federal federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United StatesStates or the Philippines, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliatesRepresentative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered NotesSecurities.
(cd) The Initial Purchasers Representative shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ Day, counsel for the Company, as to the matters described in Annex B.
(e) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C.with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the Issuerpurpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate, (ii) dated the Closing Date, of the Chief Executive Officer or any Vice President, General Counsel President and Assistant Secretary a principal financial or accounting officer of TILC, and (iii) the Company in which such other law firms acceptable to the Initial Purchasers and their counselofficers, to the effect best of their knowledge after reasonable investigation, shall state that:
(i) The Issuer : the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been duly formed and is no material adverse change, nor any development or event involving a validly existing limited liability company prospective material adverse change, in good standing under the laws condition (financial or other), business, properties or results of operations of the state of Delaware, with power Company and authority (its subsidiaries taken as a limited liability company and otherwise) to own its properties and conduct its business whole except as described set forth in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;certificate.
(iiig) The Indenture and the other Transaction Documents Representative shall have been duly authorizedreceived a letter, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of dated the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make Ernst & Young LLP which meets the statements therein not misleading; and such counsel have no reason to believe requirements of subsection (b) of this Section, except that the information specified date referred to in such subsection will be a schedule, if any, date not more than three days prior to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement Date for the purposes of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;this subsection.
(xih) This Agreement has been duly authorizedOn or prior to the date of this Agreement, executed the Representative shall have received lock-up letters substantially in the form attached as Annex A from the persons listed in Schedule C, except as agreed upon by the Company and delivered by each the Representative prior to the date of the Issuer and TILC;this Agreement.
(xii) It is not necessary in connection with (i) The Representative shall have confirmed payment from Total Gas & Power USA SAS of an amount equal to the offer, sale and delivery Affiliate Securities Purchase Price by wire transfer to an account specified at the direction of the Offered Notes by Representative.
(j) A Notice of Listing of Additional Shares relating to the Issuer Maximum Number of Underlying Securities has been submitted to the Nasdaq Global Select Market. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative reasonably requests. The Representative may in its sole discretion waive on behalf of the Initial Purchasers pursuant compliance with any conditions to this Agreement, or (ii) the resales obligations of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andhereunder.
Appears in 1 contract
Sources: Purchase Agreement (Total S.A.)
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliatesIssuer, the effect of any such attackDepositor, outbreakConn Appliances, escalationConn’s, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC Inc. or any of their respective subsidiaries, or any of their respective properties that, if determined adversely in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable to market the Purchased Notes on the terms and in the manner contemplated in the Preliminary Offering Memorandum.
(c) You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel. Conn’s 2020-A: Note Purchase Agreement
(d) M▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, TILC shall have delivered (i) an opinion or any opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of their respective subsidiariesthe Notes, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability security interest of the Issuer or TILC to perform their respective obligations under and the IndentureTrustee, this Agreementrespectively, or any other Transaction Document or which are otherwise material in the context Receivables Trust Estate, the security interest of the sale Receivables Trust in the Trust Estate, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the Offered Notestransfer of Receivables by the Seller and the Depositor; and no such actions(D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, suits the Depositor or proceedings are threatened orthe Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to such counsel’s knowledge, contemplated;the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date.
(ixe) The executionYou shall have received an opinion addressed to you and the Depositor of K&L Gates, delivery LLP, counsel to the Trustee, dated the Closing Date and performance reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the IndentureDepositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the issuance Closing Date and sale of (ii) since October 6, 2020, there has not occurred any material adverse change in or affecting the Offered Notes and compliance with the terms and provisions thereof will not result in a breach condition, financial or violation of any of the terms and provisions ofotherwise, or constitute a default underin the earnings, any statute, any rule, regulation business or order operations of any governmental agency or body or any court having jurisdiction over the Issuer, TILCthe Depositor, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subjectConn Appliances, or the organizational or formation documents Seller, except as disclosed to you in writing prior to the date of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Preliminary Offering Memorandum. Conn’s 2020-A: Note Purchase Agreement;
(xi) Such counsel You shall have no reason received evidence reasonably satisfactory to believe that you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the Preliminary Offering Circular or transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Final Offering Document, or any amendment or supplement thereto, as transfer of the Applicable Time and as interest of the Closing DateDepositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, contained any untrue statement of a material fact or omitted to state any material fact necessary to make (iii) the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as transfer of the Applicable Time and as interest of the Closing Date, contained any untrue statement of a material fact or omitted Depositor in the Receivables Trust Certificate to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer pursuant to the Purchase and TILC;
Sale Agreement and (xii) It is not necessary in connection with (iiv) the offer, sale and delivery of the Offered Notes grant by the Issuer to the Initial Purchasers pursuant Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to this Agreementyou that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;related entity.
(xiiil) The statements in You shall have received one or more negative assurance letters from M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP with respect to the Preliminary Offering Circular Memorandum and the Offering Circular under Memorandum in form and substance reasonably satisfactory to the captions Initial Purchasers.
(m) The Class A Notes shall have been rated “The IssuerBBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
(n) The RailcarsClass A Notes shall have been rated “BBB(sf)”, the Class B Notes shall have been rated “The LesseesBB(sf)” and the Class C Notes shall have been rated “B(sf)” by K▇▇▇▇ Bond Rating Agency, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries a “The Leases”stable” or more favorable outlook, “TILC”, “The Servicer”, “Description and you shall have received a letter dated as of the Servicing Agreement”Closing Date from Kroll, “Description of or other evidence satisfactory to you, confirming that the Administrative Services Agreement”Purchased Notes have such ratings and, “Description of the Purchase and Contribution Agreement”if applicable, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The respective obligations of the Initial Purchasers to purchase and pay for the Firm Offered Notes Securities on the Firm Closing Date and the Additional Offered Securities on the Option Closing Date will be subject to the accuracy of the representations and warranties herein on the part of the Issuer Company when made and TILCas of such respective dates, to the accuracy of the statements of officers of the Issuer and TILC Company made in certificates delivered pursuant to the provisions hereof, to the performance by each of the Issuer and TILC Company of its respective obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory been advised by the Company or shall have discovered and disclosed to the Initial Purchasers a letter Company that the Offering Memorandum or lettersany amendment or supplement thereto, contains an untrue statement of fact which, in the form heretofore agreed opinion of counsel for the Initial Purchasers, is material, or omits to regarding state a fact which, in the Preliminary Offering Circular opinion of counsel for the Initial Purchasers, is material and Offering Circular, each dated as of is required to be stated therein or is necessary to make the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicablestatements therein not misleading.
(b) Subsequent All corporate proceedings and other legal matters incident to the execution authorization, form and delivery validity of this Agreement, there the Indenture, the Registration Rights Agreement, the Offered Securities and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall not have occurred: (i) any change, or any development or event involving a prospective change, be reasonably satisfactory in the condition (financial or other), business, properties or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of all respects to the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered NotesPurchasers.
(c) The Initial Purchasers shall have received opinions, dated the On each Closing Date, there shall have been furnished to the Initial Purchasers the opinion (addressed to the Initial Purchasers) of (i) ▇▇▇▇▇▇ Price P.C.▇▇▇▇▇▇ Zavis & Rosenman, counsel for the IssuerCompany, (ii) the Vice President, General Counsel dated such Closing Date and Assistant Secretary of TILC, in form and (iii) such other law firms acceptable substance reasonably satisfactory to counsel for the Initial Purchasers and their counselPurchasers, substantially to the effect that:
(i) The Issuer has Company and each of its subsidiaries have been duly formed incorporated or organized, as applicable, and is a are validly existing as corporations, limited liability company companies, trusts or other entities, in good standing under the laws of the state their respective jurisdictions of Delawareincorporation or organization and have all corporate, with power and authority (as a limited liability company or trust power and otherwise) authority, as applicable, necessary to own its or hold their respective properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions businesses in which its ownership or lease of property or the conduct of its business requires such qualificationthey are engaged;
(ii) TILC The Company has been duly incorporated an authorized capitalization as set forth in the Offering Memorandum, and is a validly existing corporation in good standing under the laws all of the state issued shares of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in capital stock of the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents Company have been duly authorizedand validly authorized and issued, executed are fully paid and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered non-assessable and conform to the description thereof contained in the Final Offering DocumentMemorandum; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation all of the Issuer issued shares of capital stock, limited liability company interest or TILCtrust shares, as applicable, enforceable against of each subsidiary of the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium Company have been duly and similar laws of general applicability relating to or affecting creditors’ rights validly authorized and issued and to general equity principlesthe extent they are shares of capital stock of a corporation, are fully paid, non-assessable and are owned directly or indirectly by the Company, and to such counsel's knowledge, free and clear of all liens, encumbrances, equities or claims;
(iii) The Conversion Shares have been duly and validly authorized and, when issued and delivered against payment therefor will be duly and validly issued, fully paid and non-assessable;
(iv) The Indenture creates a valid lien upon all Except as set forth in the Offering Memorandum, to the knowledge of such counsel, there are no outstanding warrants or options issued by the Company to purchase any shares of capital stock of the Collateral (as defined in Company or any security convertible or exchangeable for capital stock of the Indenture) as granted under Company and there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the Indenture and subject voting or transfer of, any shares of the Stock pursuant to the lien thereof, subject only Company's charter or by laws or any agreement or other instrument known to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateralcounsel;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILCCompany;
(xiivi) It is not necessary in connection with (i) Each of the offerIndenture and the Registration Rights Agreement has been duly authorized, sale executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of the Offered Notes Company. The Indenture is enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by the Issuer bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws now or hereafter in effect relating to the Initial Purchasers pursuant to this Agreementor affecting rights of creditors and other obligees generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or (iiat law) the resales or by an implied covenant of good faith and fair dealing and except further as enforceability of the Offered Notes indemnification and contribution provisions thereof, may be limited by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Actconsiderations of public policy;
(xiiivii) The Offered Securities have been duly authorized by the Company and, when executed, authenticated and delivered in accordance with this Agreement and the Indenture, will be valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, except in all cases as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting rights of creditors and other obligees generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing, and except further as enforceability of the indemnification and contribution provisions thereof, may be limited by considerations of public policy will be entitled to the benefits of the Indenture;
(viii) The statements in the Preliminary Offering Circular and the Offering Circular Memorandum under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “"Description of the Servicing Agreement”, “Debentures," "Description of the Administrative Services Agreement”, “Description of the Purchase Capital Stock" and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, "Notice to Investors" insofar as they purport to summarize certain terms the provisions of the Indenture, the Offered Notes Securities and the applicable Transaction Documents, constitute a fair summary of Common Stock (including the provisions purported to be summarized; andConversion Shares) are true and accurate in all material respects;
Appears in 1 contract
Sources: Purchase Agreement (Alloy Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer Issuer, TILC, TRIP Holdings and TILCTriumph Holdings, to the accuracy of the statements of officers of the Issuer Issuer, TILC, TRIP Holdings and TILC Triumph Holdings made pursuant to the provisions hereof, to the performance by each of the Issuer Issuer, TILC, TRIP Holdings and TILC Triumph Holdings of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC TILC, TRIP Holdings or Triumph Holdings by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC TILC, TRIP Holdings or Triumph Holdings (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) i. The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) . TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iii. TRIP Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (iiias a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TRIP Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iv. Triumph Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; Triumph Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
v. The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer Issuer, TILC, TRIP Holdings or TILCTriumph Holdings, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer Issuer, TILC, TRIP Holdings or TILCTriumph Holdings, as applicable, enforceable against the Issuer Issuer, TILC, TRIP Holdings or TILCTriumph Holdings, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) vi. The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) vii. The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) viii. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance of the Offered Notes or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) ix. There are no pending actions, suits or proceedings against or affecting the Issuer, TILC TILC, TRIP Holdings, Triumph Holdings or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC TILC, TRIP Holdings, Triumph Holdings or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) x. The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings is a party, and this Agreement and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, TRIP Holdings, Triumph Holdings, or any of their properties, or any agreement or instrument to which the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings is a party or by which the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings is bound or to which any of the properties of the Issuer Issuer, TILC, TRIP Holdings or TILC Triumph Holdings is subject, or the organizational or formation documents of the Issuer Issuer, TILC, TRIP Holdings or TILCTriumph Holdings, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) xi. Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) xii. This Agreement has been duly authorized, executed and delivered by each of the Issuer Issuer, TILC, TRIP Holdings and TILCTriumph Holdings;
(xii) xiii. It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) xiv. The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “Triumph Holdings and TRIP Holdings”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of the Hedge Agreements”, “Description of the Liquidity Facility DocumentsFacility” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; and;
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations obligation of the Initial Purchasers to purchase and pay for the Offered Purchased Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCmade herein, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereofhereto, to the performance by each of the Depositor, Conn Appliances, the Issuer and TILC Conn’s, Inc. of its their obligations hereunder hereunder, and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the Initial Purchasers You shall have received from a third party that is a nationally recognized accounting firm Ernst & Young LLP, independent certified public accountants, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular you and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicableyour counsel.
(b) Subsequent to the execution and delivery of this Agreement, there There shall not have occurred: (i) occurred any change, or any development or event involving a prospective change, in the condition (condition, financial or other)otherwise, businessor in the earnings, properties business or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliatesIssuer, the effect of any such attackDepositor, outbreakConn Appliances, escalationConn’s, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC Inc. or any of their respective subsidiaries, or any of their respective properties that, if determined adversely in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable to market the Purchased Notes on the terms and in the manner contemplated in the Preliminary Offering Memorandum.
(c) You shall have received an opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) M▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, TILC shall have delivered (i) an opinion or any opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to (A) general corporate matters, the validity of their respective subsidiariesthe Notes, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability security interest of the Issuer or TILC to perform their respective obligations under and the IndentureTrustee, this Agreementrespectively, or any other Transaction Document or which are otherwise material in the context Receivables Trust Estate, the security interest of the sale Receivables Trust in the Trust Estate, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating to the treatment of the Offered Notestransfer of Receivables by the Seller and the Depositor; and no such actions(D) to the effect that a bankruptcy court would not disregard the separate legal existence of the Issuer, suits the Depositor or proceedings are threatened orthe Receivables Trust and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, with those of the Seller or Conn Appliances, on the other hand, in a bankruptcy proceeding involving the Seller or Conn Appliances, and (ii) one or more negative assurance letters with respect to such counselthe Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers dated the Closing Date. Conn’s knowledge, contemplated;2019-B: Note Purchase Agreement
(ixe) The executionYou shall have received an opinion addressed to you and the Depositor of K&L Gates, delivery LLP, counsel to the Trustee, dated the Closing Date and performance reasonably satisfactory in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicer, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you and the Depositor of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables Trust, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, including with respect to certain matters under Delaware law with respect to the Depositor, the Issuer and the Receivables Trust and the authority of the IndentureDepositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date of authorized officers of the Depositor, Conn Appliances and the Seller, in which such officers shall state that: (i) the representations and warranties made by it in the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement are true and correct, that it has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on or before the issuance Closing Date and sale of (ii) since November 14, 2019, there has not occurred any material adverse change in or affecting the Offered Notes and compliance with the terms and provisions thereof will not result in a breach condition, financial or violation of any of the terms and provisions ofotherwise, or constitute a default underin the earnings, any statute, any rule, regulation business or order operations of any governmental agency or body or any court having jurisdiction over the Issuer, TILCthe Depositor, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subjectConn Appliances, or the organizational or formation documents Seller, except as disclosed to you in writing prior to the date of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;Preliminary Offering Memorandum.
(xi) Such counsel You shall have no reason received evidence reasonably satisfactory to believe that you that, on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the Preliminary Offering Circular or transfer of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the Final Offering Document, or any amendment or supplement thereto, as transfer of the Applicable Time and as interest of the Closing DateDepositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, contained any untrue statement of a material fact or omitted to state any material fact necessary to make (iii) the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as transfer of the Applicable Time and as interest of the Closing Date, contained any untrue statement of a material fact or omitted Depositor in the Receivables Trust Certificate to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer pursuant to the Purchase and TILC;
Sale Agreement and (xii) It is not necessary in connection with (iiv) the offer, sale and delivery of the Offered Notes grant by the Issuer to the Initial Purchasers pursuant Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to this Agreementyou that, on or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing in all applicable governmental offices reflecting the release from any applicable liens of the Receivables in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received, from each of the Depositor, Conn Appliances and the Seller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this related entity. Conn’s 2019-B: Note Purchase Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiiil) The statements in You shall have received one or more negative assurance letters from M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP with respect to the Preliminary Offering Circular Memorandum and the Offering Circular under Memorandum in form and substance reasonably satisfactory to the captions Initial Purchasers.
(m) The Class A Notes shall have been rated “The IssuerBBBsf”, the Class B Notes shall have been rated “BBsf” and the Class C Notes shall have been rated “Bsf” by Fitch Ratings, Inc. (“Fitch”), and, to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
(n) The RailcarsClass A Notes shall have been rated “BBB(sf)”, the Class B Notes shall have been rated “The LesseesBB(sf)” and the Class C Notes shall have been rated “B(sf)” by K▇▇▇▇ Bond Rating Agency, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries a “The Leases”stable” or more favorable outlook, “TILC”, “The Servicer”, “Description and you shall have received a letter dated as of the Servicing Agreement”Closing Date from Kroll, “Description of or other evidence satisfactory to you, confirming that the Administrative Services Agreement”Purchased Notes have such ratings and, “Description of the Purchase and Contribution Agreement”if applicable, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andoutlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Offered Notes Securities will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILCeach Guarantor herein in all material respects, except to the extent such representations and warranties are already qualified by materiality in Section 2 herein, to the accuracy of the statements of officers of the Issuer and TILC each Guarantor made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC each Guarantor of its their obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) On the Closing Date, the The Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory letter, dated the date of this Agreement, of KPMG Peat Marwick LLP, independent auditors for the Issuer and FSC Semiconductor, substantially in the form of Exhibit A hereto and acceptable to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicablePurchasers.
(b) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of Samil Accounting Corporation, independent auditors for the PD Business, substantially in the form of Exhibit B hereto and acceptable to the Initial Purchasers.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) any change, or any development or event involving a prospective change, in the condition (financial or other)condition, business, properties or results of operations of the Issuer or TILC Issuer, FSC Semiconductor and its subsidiaries the Subsidiaries taken as one enterprise a whole or of the PD Business which, in the reasonable judgment of the Initial Purchasers or any of their affiliatesCSFBC, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the offering or the sale of and payment for the Offered NotesSecurities; (iiiii) any downgrading in the rating of any debt securities of TILC the Issuer by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC the Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market); (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, Exchange or any setting of minimum prices for trading on such exchange; (v) , or any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter over-the-counter market; (viv) any banking moratorium declared by U.S. Federal or New York authorities; or (viivi) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates or Korea is involved, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ Price P.C., counsel for the Issuer, (ii) the Vice President, General Counsel and Assistant Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and TILC is duly qualified to do business as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; and
Appears in 1 contract
Sources: Purchase Agreement (Fairchild Semiconductor International Inc)
Conditions of the Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Offered Notes will Securities as provided herein on the Closing Date and, with respect to the Additional Securities, any Subsequent Closing Date, shall be subject to the accuracy of the representations representations, warranties and warranties herein agreements on the part of the Issuer Company set forth in Section 1 hereof as of the date hereof and TILCas of the Closing Date as though then made and, with respect to the Additional Securities, as of the related Subsequent Closing Date as though then made, to the accuracy of the statements of officers of the Issuer and TILC Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the Issuer and TILC of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateconditions:
(a) On the Closing Datedate hereof, the Initial Purchasers Representatives shall have received from PricewaterhouseCoopers LLP, independent public accountants for the Company, a third party that is a nationally recognized accounting firm reasonably satisfactory letter dated the date hereof addressed to the Initial Purchasers a letter or lettersPurchasers, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated of which is attached as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.Exhibit A.
(b) Subsequent For the period from and after the date of this Agreement and prior to the execution and delivery of this AgreementClosing Date and, there shall not have occurred: with respect to the Additional Securities, any Subsequent Closing Date:
(i) there has not occurred any changeMaterial Adverse Change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results effect of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the sole judgment of the Initial Purchasers or any of their affiliatesRepresentatives, is so material and adverse and makes as to make it impractical or inadvisable to proceed with completion the offering;
(ii) there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (a) of this Section 8 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the sale Securities as contemplated by the Preliminary Offering Memorandum and the Final Offering Memorandum; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given of and payment any intended or potential downgrading or of any review for a possible change that does not indicate the Offered Notes; (ii) any downgrading direction of the possible change, in the rating of accorded any debt securities of TILC the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g436(g)(2) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers On each of the Closing Date and any Subsequent Closing Date, the Representatives shall have received opinions, dated the Closing Date, opinions of (i) W▇▇▇▇▇ ▇▇▇▇▇▇ Price P.C.P▇▇▇▇▇▇▇▇ ▇▇▇▇ and D▇▇▇ LLP, counsel for the IssuerCompany, (ii) F▇▇▇▇▇▇▇▇▇ & B▇▇▇▇, PA, Minnesota counsel for the Vice President, General Counsel and Assistant Secretary of TILCCompany, and in-house counsel, dated as of such Closing Date, substantially the forms of which are attached as Exhibits B, C and D, respectively.
(iiid) On each of the Closing Date and any Subsequent Closing Date, the Representatives shall have received the opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated as of such other law firms acceptable Closing Date, in form and substance satisfactory to, and addressed to, the Representatives, with respect to the Initial Purchasers issuance and their counselsale of the Securities, the Registration Statement, the Offering Memorandum and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) On each of the Closing Date and any Subsequent Closing Date, the Representatives shall have received a written certificate executed by the Chairman of the Board, Chief Executive Officer or President of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws representations, warranties of the state Company in this Agreement are true and correct on and as of Delawarethe Closing Date or the Subsequent Closing Date, as the case may be, with power the same force and authority (effect as a limited liability company though expressly made on and otherwise) to own its properties and conduct its business as described in of such Closing Date or such Subsequent Closing Date, as the General Disclosure Package or Additional Issuer Informationcase may be; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;and
(ii) TILC has been duly incorporated and is a validly existing corporation in good standing under since the laws date of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described most recent financial statements included or incorporated by reference in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership Final Offering Memorandum (exclusive of any amendment or lease of property or the conduct of its business requires such qualification;supplement thereto), there has not occurred any Material Adverse Change.
(iii) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date or such Subsequent Closing Date, as the case may be.
(f) On each of the Closing Date and any Subsequent Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (a) of this Section 8, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date or Subsequent Closing Date, as the case may be.
(g) The Indenture Company and the other Transaction Documents Initial Purchasers shall have been duly authorized, executed and delivered by the Issuer or TILCRegistration Rights Agreement (in form and substance satisfactory to the Initial Purchasers and the Company), as applicable; and the Offered Notes Registration Rights Agreement shall be in full force and effect.
(h) The Securities shall have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, designated PORTAL-eligible securities in accordance with its termsthe rules and regulations of the National Association of Securities Dealers, Inc.
(i) The Company shall have caused the Conversion Shares to be approved for listing, subject to bankruptcyissuance, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;on the New York Stock Exchange,
(ivj) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) Each of the Issuer and TILC has been duly incorporated On or formed, and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and before each of the Issuer Closing Date and TILC is duly qualified to do business any Subsequent Closing Date, the Representatives and counsel for the Initial Purchasers shall have received such information and documents as a foreign corporation or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or they may reasonably require for the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vi) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇ Rule”;
(vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(viii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely enabling them to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(ix) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and pass upon the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes Securities as contemplated by herein. If any condition specified in this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time Section 8 is not satisfied when and as of required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date and, with respect to the Additional Securities, at any time prior to the applicable Subsequent Closing Date, contained which termination shall be without liability on the part of any untrue statement of a material fact or omitted party to state any material fact necessary to make the statements therein not misleading; other party, except that Section 7(k), Section 10, Section 11, Section 12 and Section 16 shall at all times be effective and shall survive such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Master Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized; andtermination.
Appears in 1 contract
Sources: Purchase Agreement (Medtronic Inc)