Conditions of the Obligations of the Initial Purchasers. The obligation of the Initial Purchasers to purchase and pay for the Purchased Notes will be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers made pursuant hereto, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. of their obligations hereunder, and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement (a) You shall have received from 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 you and your counsel. (b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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) ▇▇▇▇▇ ▇▇▇▇▇ 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, (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 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity. (l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 2 contracts
Sources: Note Purchase Agreement (Conns Inc), Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, each of the Issuer and Conn’s, Inc. TILC of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), 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 earningsover‑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, business outbreak or operations 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 DepositorVice President, Conn AppliancesGeneral Counsel and Assistant Secretary of TILC, Conn’sand (iii) such other law firms acceptable to the Initial Purchasers and their counsel, Inc. 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 reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer 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 material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance and sale of the Offered Notes on and compliance with the terms and provisions thereof will not result in a breach or violation of any of the manner 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 in by this Agreement;
(x) Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.
Circular or (cii) You shall have received an opinion the Final Offering Document, or any amendment or supplement thereto, as of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Applicable Time 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 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 form and substance reasonably satisfactory a schedule, if any, to such counsel’s letter, which information, when taken together with the Initial PurchasersPreliminary Offering Circular, with respect to (A) general corporate matterswill comprise the General Disclosure Package, the validity as of the NotesApplicable 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 security interest statements therein not misleading;
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the 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 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.TILC;
(exii) 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 It is not necessary 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 connection 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(lxiii) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Class B Notes shall have been rated Servicing Agreement”, “BBsfDescription 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 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 Description of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that Offered Notes and the Purchased Notes have such ratings and, if applicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)Master Indenture”, insofar as they purport to summarize certain terms of the Class B Offered 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 Agencyapplicable Transaction Documents, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries constitute a “stable” or more favorable outlook, and you shall have received a letter dated as fair summary of the Closing Date from Kroll, or other evidence satisfactory provisions purported to you, confirming that the Purchased Notes have such ratings be summarized; and, if applicable, outlook.
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 obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Initial Notes will be subject to the accuracy in all material respects of the representations and warranties made on the part of the Issuer herein, to the accuracy in all material respects of the statements of officers of the Issuer made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from Ernst & Young LLPa letter, independent certified public accountantstogether with the related engagement letter, dated the Report and letters with respect to date of this Agreement, of PricewaterhouseCoopers in the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to you and your counsel.attached hereto as Exhibit B.
(b) There The Initial Purchasers shall have received a letter, together with the related engagement letter, dated the date of this Agreement, of Deloitte Touche Tohmatsu in the form attached hereto as Exhibit C.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred (i) any change, or any development involving a prospective change, change in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatIssuer Group taken as a whole which, in the reasonable judgment of a majority in interest of the Initial Purchasers, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Initial Notes; (ii) any downgrading in the rating of any debt securities of the Issuer or ▇▇▇▇▇▇▇ by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Rating Services, or any public announcement that either of such organizations has under surveillance or review its rating of any debt securities of the Issuer or ▇▇▇▇▇▇▇ (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer has been placed on negative outlook; (iii) any change in French, U.S., UK or international financial, political or economic conditions or currency exchange rates or exchange controls as would (or the effect of which on such financial markets would be such as would) in the reasonable judgment of a majority in interest of the Initial Purchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Initial Notes, whether in the primary market or in respect of dealings in the Purchased Notes secondary market; (iv) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange, the London Stock Exchange or the Paris Stock Exchange, or any setting of minimum prices for trading on any such exchange, by any such exchange or by any other governmental authority having jurisdiction; (v) any banking moratorium declared by U.S. federal, New York, French or UK authorities; (vi) any major disruption of settlements of securities in the manner contemplated United States, the United Kingdom, Luxembourg or France or (vii) any attack on, outbreak or escalation of hostilities or acts of terrorism involving the United States, France or the United Kingdom, any declaration of war by the U.S. Congress, the French Parliament, the UK Parliament or any other national or international calamity or emergency if, in the Preliminary Offering Memorandum.
(c) You shall have received an opinion reasonable judgment of in-house counsel to a majority in interest of the Depositor, Conn AppliancesInitial Purchasers, the Receivables Trust 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 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 counselInitial Notes.
(d) The Initial Purchasers shall have received such opinions, dated the Closing Date, from ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇, special U.S., UK and French 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 DateInitial Purchasers, 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, (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 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 The Initial Purchasers shall have received an opinion addressed to you dated the Closing Date, including a disclosure statement, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. and New York counsel for the Depositor of K&L GatesIssuer, LLP, counsel to in the Trusteeform attached hereto as Exhibit D.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date and reasonably satisfactory Date, of Linklaters & ▇▇▇▇▇▇, Luxembourg counsel for the Issuer, in the form and substance to you and your counsel.attached hereto as Exhibit E.
(fg) You The Initial Purchasers shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Serviceropinion, dated the Closing Date and reasonably satisfactory Date, of Linklaters, French counsel for the Issuer, in the form and substance to you and your counsel.attached hereto as Exhibit F.
(gh) You The Initial Purchasers shall have received an opinion addressed to you and opinion, dated the Depositor Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Partners, Italian counsel for the Issuer, in the form attached hereto as Exhibit G.
(i) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Finger▇ ▇▇▇▇▇▇▇, P.A.S.C., Mexican counsel to the Receivables Trust Trustee and special Delaware counsel to the Depositor, for the Issuer and the Receivables TrustInitial Purchasers, in the form attached hereto as Exhibit H.
(j) The Initial Purchasers shall have received an opinion, dated the Closing Date and reasonably satisfactory Date, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the Issuer, in the 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.attached hereto as Exhibit I.
(hk) You The Initial Purchasers shall have received certificates an opinion, dated the Closing Date Date, of authorized officers Linklaters & Alliance, English counsel for the Issuer, in the form attached hereto as Exhibit J.
(l) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, Connecticut counsel for the Issuer, in the form attached hereto as Exhibit K.
(m) The Initial Purchasers shall have received a certificate, dated the Closing Date, from two of Messrs. Grappotte, Bazil or ▇▇▇▇▇▇▇, each a director of the Depositor, Conn Appliances and the SellerIssuer, in which such officers executive directors, to their knowledge after reasonable inquiry, shall state that: (i) that the representations and warranties made by it of the Issuer in the other Transaction Documents and this Agreement are true and correct, in all material respects, as of the Closing Date, that it the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on hereunder at 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) and that, subsequent to the transfer dates of the interest of the Seller Offering Circular there has been no material adverse change, in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreementcondition (financial or other), (ii) the transfer business or results of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant by the Issuer to the Trustee under the Indenture of a security interest in the interest operations 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, Material Subsidiaries taken as a certificate executed whole except as set forth in or contemplated 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 related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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, outlookCircular.
(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 rating, such rating carries a “stable” or more favorable outlook, and you Initial Purchasers shall have received a letter letter, dated as the Closing Date, of PricewaterhouseCoopers which meets the requirements of subsection (a) of this Section 6.
(o) The Initial Purchasers shall have received a letter, dated the Closing Date, of Deloitte Touche Tohmatsu which meets the requirements of subsections (b) of this Section 6.
(p) Each of the High Yield Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes Agreements shall have such ratings been executed by each party thereto and, if applicableassuming with respect to the Registration Rights Agreement only that such agreement has been duly executed and delivered by the Initial Purchaser, outlooksuch agreements shall be in full force and effect.
(q) No stop order preventing the use of the Offering Circular or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the U.S. Securities Act shall have been issued. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request. The Joint Lead Managers may in their 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
Sources: Purchase Agreement (Fimep Sa)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Notes will shall be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers made pursuant hereto, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. of their obligations hereunder, and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementconditions:
(a) You shall have received from 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 you and your counsel.
(b) There The Initial Purchasers shall not have occurred any change, discovered and disclosed to the Company or AT&T Capital on or prior to the Closing Date that the Memorandum or any development involving amendment or supplement thereto contains any untrue statement of a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, fact which 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) ▇▇▇▇▇ ▇▇▇▇▇ 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, (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 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 ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel for the Initial Purchasers, is material or omits to state any 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.
(b) At or prior to the time of closing, the Representative shall have received from counsel for the Company and AT&T Capital, an opinion, satisfactory to ▇▇▇▇▇▇▇ & Fingerand ▇▇▇▇▇▇, P.A.to the effect that -
(i) Newcourt has been duly incorporated and is validly existing and in good standing under the laws of the Province of Ontario, Canada and AT&T Capital has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware; each of Newcourt and AT&T Capital is duly qualified to do business and in good standing as a foreign corporation in all jurisdictions in which its ownership or leasing of properties or the conduct of its businesses requires such qualification (except where the failure to so qualify or be in good standing would not have a Material Adverse Effect), and has all power and authority necessary to own its respective properties and conduct the businesses in which it is engaged, as described in the Memorandum;
(ii) The issue and sale of the Notes by Newcourt and the compliance by Newcourt with all the provisions of this Agreement, the Registration Rights Agreement and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which Newcourt or any of its subsidiaries is a party or by which Newcourt or any of its subsidiaries is bound or to which any of the Receivables Trust Trustee property or assets of Newcourt or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of Newcourt or any of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over Newcourt or any of its subsidiaries or any of their properties or assets (except for such conflicts, breaches, violations and special Delaware counsel to defaults as would not have a Material Adverse Effect); and, except for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the Depositor, purchase and distribution of the Issuer Notes by the Initial Purchasers and compliance with 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 Securities Act with respect to the DepositorRegistration Rights Agreement, 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 Depositorno consent, Conn Appliances and the Sellerapproval, 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 correctauthorization, that it has complied with all agreements and satisfied all conditions on its part to be performed qualification 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 otherwiseorder of, or in filing or registration with, any such court or governmental agency or body is required for the earningsexecution and delivery by Newcourt of, business or operations of compliance by Newcourt with the Issuer, the Depositor, Conn Appliancesprovisions of, or the Sellerconsummation of the transactions contemplated by, this Agreement, the Registration Rights Agreement and the Indenture except to the extent that the effect of the failure to obtain such consent, approval, authorization, qualification or order or to make such filing or registration would not have a Material Adverse Effect;
(iii) The issue of the Guarantee by AT&T Capital and the compliance by AT&T Capital with all the provisions of this Agreement, the Registration Rights Agreement, the Indenture and the Guarantee and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which AT&T Capital or any of its subsidiaries is a party or by which AT&T Capital or any of its subsidiaries is bound or to which any of the property or assets of AT&T Capital or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of AT&T Capital or any of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over AT&T Capital or any of its subsidiaries or any of their properties or assets (except for such conflicts, breaches, violations and defaults as would not have a Material Adverse Effect); and, except for such consents, approvals, authorizations, registrations or qualifications as disclosed to you may be required under applicable state securities laws in writing prior connection with the purchase and distribution of the Notes and Guarantee by the Initial Purchasers and compliance with the Securities Act with respect to the date Registration Rights Agreement, no consent, approval, authorization, qualification or order of, or filing or registration with, any such court or governmental agency or body is required for the execution and delivery by AT&T Capital of, compliance by AT&T Capital with the provisions of, or the consummation of the Preliminary Offering Memorandum.transactions contemplated by this Agreement, the Registration Rights Agreement, the Indenture and the Guarantee except to the extent that the effect of the failure to obtain such consent, approval, authorization, qualification or order or to make such filing or registration would not have a Material Adverse Effect;
(iiv) You shall The Indenture has (A) been duly authorized, executed and delivered by Newcourt and (B) is a valid and binding agreement of Newcourt enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles);
(v) The Notes (A) have received evidence reasonably satisfactory been duly authorized by Newcourt and, when duly executed and authenticated as provided in the Indenture and delivered against payment therefor in accordance with this Agreement, (B) will be duly and validly issued and outstanding, and (C) will constitute valid and binding agreements of Newcourt enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to you thator affecting creditors' rights generally and subject to general equitable principles), on and entitled to the benefits of the Indenture;
(vi) The Guarantee and the Indenture have been duly authorized, executed and delivered by AT&T Capital and are valid and binding agreements of AT&T Capital enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or before affecting creditors' rights generally and subject to general equitable principles);
(vii) The statements made in the Memorandum under the captions "Description of the Notes," "Description of the Guarantee" and "Exchange Offer; Registration Rights; Liquidated Damages," insofar as such statements constitute summaries of the legal matters, documents or proceedings specifically referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the maters referred to therein;
(viii) This Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by (A) Newcourt and (B) AT&T Capital; and
(ix) Except as to financial statements and schedules contained therein, as to which such counsel is not called upon to express any opinion or belief, the Memorandum, and each document or portion thereof incorporated by reference in the Memorandum, as of the Closing Date, UCC-1 financing did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements will be submitted for filing therein, in all applicable governmental offices reflecting (i) the transfer light of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreementcircumstances under which they were made, (ii) the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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 Estatenot misleading.
(jc) You At or prior to the time of closing, the Representative 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ an opinion to the effect specified in clauses (b)(iv)(B), (b)(v)(B), (b)(vi), (b)(vii), (b(viii)(B) and (b)(ix), which opinions may rely on the opinion referred to in clauses (b) and (d).
(d) At or prior to the time of closing, the Representative shall have received from (i) Sidley & Austin, special tax counsel to the Company, an opinion that its opinions expressed or referred to under the caption "Material United States Income Tax Consequences" and (ii) Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect ▇, special tax counsel to the Preliminary Offering Company, an opinion that its opinions expressed or referred to under the caption "Canadian Federal Income Tax Considerations" in the Memorandum are correct in all material respects.
(e) At each of the date hereof and at or prior to the time of closing, the Representative shall have received an executed copy of a letter from Ernst & Young LLP, addressed to Newcourt, AT&T Capital and the Offering Memorandum Representative, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to financial statements and certain financial information, including the financial information contained or incorporated by reference in the Memorandum as identified by the Representative.
(mf) The Class A Notes Since the respective dates as of which information is given in the Memorandum there shall not have been, at the time of closing, any material adverse change in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of Newcourt or AT&T Capital and their respective subsidiaries, otherwise than as set forth or contemplated in the Memorandum; the representations and warranties of Newcourt and AT&T Capital herein shall be true at the Closing Date; neither Newcourt nor AT&T Capital shall have failed, at or prior to the Closing Date to have performed all agreements herein contained which should have been rated “BBBsf”, performed by it at or prior to such time; and the Class B Notes Representative shall have been rated “BBsf” received, at the Closing Date, a certificate to the foregoing effect dated the day of the closing and signed by the Class C Notes President, a Vice President or the Treasurer of each of Newcourt and AT&T Capital.
(g) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded Newcourt's or AT&T Capital's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of rule 436(g)(2) under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of Newcourt's or AT&T Capital's debt securities.
(h) Newcourt and AT&T Capital shall have executed and delivered the Registration Rights Agreement.
(i) Prior to the time of closing, Newcourt shall have furnished to the Representative such further due diligence information customary for transactions of the type contemplated by this Agreement, certificates and documents as the Representative may reasonably request. In case any of the conditions specified above in this Section 7 shall not have been rated “B-sf” fulfilled, this Agreement may be terminated by Fitch Ratings, Inc. (“Fitch”), and, the Representative by delivering written notice of termination to Newcourt. Any such termination shall be without liability of any party to any other party except to the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or more favorable outlook, provided in subparagraphs (c) and you shall have received a letter dated as (f) of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookSection 6 hereof.
(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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, each of the Issuer and Conn’s, Inc. TILC of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), 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, 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 earningsover‑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, business outbreak or operations 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 DepositorSecretary of TILC, Conn Appliancesand (iii) such other law firms acceptable to the Initial Purchasers and their counsel, Conn’sto 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, Inc. 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;
(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) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the 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 Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) The Issuer is not and, after giving effect to the offering and sale of the 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”;
(vi) 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 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;
(vii) 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 reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer 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 Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(viii) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance of the Notes on 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 manner 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 in by this Agreement;
(ix) Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.
Circular or (cii) You shall have received an opinion the Final Offering Document, or any amendment or supplement thereto, as of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Applicable Time 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 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 form and substance reasonably satisfactory a schedule, if any, to such counsel’s letter, which information, when taken together with the Initial PurchasersPreliminary Offering Circular, with respect to (A) general corporate matterswill comprise the General Disclosure Package, the validity as of the NotesApplicable 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 security interest statements therein not misleading;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the 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 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.TILC;
(exi) 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 It is not necessary 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 connection 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(lxii) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Class B Notes shall have been rated Servicing Agreement”, “BBsfDescription 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 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 Description of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that Offered Notes and the Purchased Notes have such ratings and, if applicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)Indenture”, insofar as they purport to summarize certain terms of the Class B Offered 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 Agencyapplicable Transaction Documents, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries constitute a “stable” or more favorable outlook, and you shall have received a letter dated as fair summary of the Closing Date from Kroll, or other evidence satisfactory provisions purported to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.be summarized;
Appears in 1 contract
Sources: Equipment Note Purchase Agreement (Trinity Industries Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein (as though made hereinon the Closing Date), to the accuracy of the statements of Company officers made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Company of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Representative shall have received from Ernst & Young LLPa letter, 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 you and your counsel.
(b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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) ▇▇▇▇▇ ▇▇▇▇▇ 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 mattersdated the date hereof, 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, (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 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 PricewaterhouseCoopers 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.
(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 (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 Company and its subsidiaries taken as one enterprise which, in the judgment of the Representative, 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 Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of 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 that the 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 Representative, 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; (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 Company 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 or the Philippines, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative, 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 Securities.
(d) The 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) You The Representative 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 from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.LLP, counsel to for the Receivables Trust Trustee and special Delaware counsel to the DepositorInitial Purchasers, the Issuer and the Receivables Trustsuch opinion or opinions, dated the Closing Date and reasonably satisfactory in form and substance to you and your counselDate, including with respect to certain such matters 91199526 Conn’s 2017-B: Note Purchase Agreement under Delaware law with respect to as the DepositorRepresentative may require, the Issuer and the Receivables Trust and Company shall have furnished to such counsel such documents as they may reasonably request for the authority purpose of the Depositor and the Issuer enabling them to file a voluntary bankruptcy petitionpass upon such matters.
(hf) You The Representative shall have received certificates a certificate, dated the Closing Date of authorized officers Date, of the Depositor, Conn Appliances Chief Executive Officer or any Vice President and a principal financial or accounting officer of the Seller, Company in which such officers officers, to the best of their knowledge after reasonable investigation, shall state that: (i) the representations and warranties made by it of the Company in the other Transaction Documents and this Agreement are true and correct, that it ; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under 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 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 Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such agreements on or before certificate.
(g) The Representative shall have received a letter, dated the Closing Date, of Ernst & Young LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date and for the purposes of this subsection.
(iih) since December 7, 2017 there has not occurred any material adverse change in On 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 this Agreement, the Preliminary Offering MemorandumRepresentative 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 the Representative prior to the date of this Agreement.
(i) You The Representative shall have received evidence reasonably satisfactory confirmed payment from Total Gas & Power USA SAS of an amount equal 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) Affiliate Securities Purchase Price by wire transfer to an account specified at the transfer direction of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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 EstateRepresentative.
(j) You shall have received evidence A Notice of Listing of Additional Shares relating to the 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 satisfactory to you that, requests. The Representative may in its sole discretion waive 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 behalf of the Receivables in form and substance reasonably satisfactory Initial Purchasers compliance with any conditions to you and your counsel.
(k) You shall have received, from each the obligations 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 related entityInitial Purchasers hereunder.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Sources: Purchase Agreement (Total S.A.)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased Notes will be Securities on the Closing Date are subject to the accuracy of the representations and warranties made on the part of the Company contained herein, to the accuracy of the statements of the officers of the Company made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Company of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You On the date of this Agreement and on the Closing Date, the Representatives shall have received from Ernst & Young LLP, independent certified public accountants, the Report and executed copies of letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to you and your counsel.
(b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel addressed to the Depositor, Conn Appliances, the Receivables Trust, the Seller Company and the IssuerRepresentatives, substantially in the forms previously approved by the Representatives.
(b) The Representatives shall have delivered (i) received 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, (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 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 ▇▇▇▇▇▇▇▇Cadwalader, ▇▇▇▇▇▇ & 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 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect , counsel for the Company, to the Preliminary Offering Memorandum effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the Offering Memorandum laws of the State of Colorado and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
(ii) The execution, delivery and performance of the Indenture by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Indenture has been duly and validly executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(iii) The Securities, when duly executed and authenticated in the manner contemplated in the Indenture and issued and delivered to the Initial Purchasers against payment therefor in accordance with the provisions hereof, will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(iv) The Exchange Securities have been duly authorized by the Company and, when duly executed in the manner contemplated in the Indenture and issued and delivered in exchange for the Securities in the manner contemplated in the Registration Rights Agreement, will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and will be in the form contemplated by, and substance reasonably satisfactory entitled to the benefits of, the Indenture.
(v) The execution, delivery and performance of this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company; and this Agreement has been duly and validly executed and delivered by the Company.
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company, and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that enforcement of rights to indemnification and contribution contained therein may be limited by applicable federal or state laws or the public policy underlying such laws.
(vii) No consent, approval, authorization or other action by, or filing or registration with, any federal governmental authority is required in connection with the execution and delivery by the Company of the Indenture or the issuance and sale of the Securities to the Initial Purchasers pursuant to the terms of this Agreement, except such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Initial Purchasers.
(mviii) The Class A Notes shall have been rated “BBBsf”statements in the Offering Memorandum under the headings "Description of Notes", the Class B Notes shall have been rated “BBsf” "Exchange Offer; Registration Rights" and the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. (“Fitch”), and, "Notice to the extent that Fitch expresses an outlook with respect to any Investors" insofar as such rating, such rating carries statements constitute a “stable” or more favorable outlook, and you shall have received a letter dated as summary of certain provisions of the Closing Date from Fitchdocuments referred to therein, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookare accurate in all material respects.
(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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Issuer and Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Holdings of their obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from 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 you and your counsel.
(b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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 Trusteeletter, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel LLP in a form satisfactory to the DepositorInitial Purchasers in all respects.
(b) Subsequent to the execution and delivery of this Agreement, Conn Appliances, the Receivables Trust, the Seller and the Issuer, there shall not have delivered occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that 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) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, 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 Securities; (B) any downgrading in the rating of any debt securities of the Company 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 the Company (other than an opinion announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or opinionslimitation of trading in securities generally on the New York Stock Exchange, subject or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to customary qualificationsproceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, assumptionsor both, limitations and exceptionswould constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasersof Simpson, 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, (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 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 Thacher & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & 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 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP with respect which 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 days prior to the Preliminary Offering Memorandum Closing Date for the purposes of this subsection.
(i) The Issuer, Holdings and the Offering Memorandum Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in form accordance with the rules and substance reasonably satisfactory regulations adopted by the NASD relating to trading in the Initial PurchasersPORTAL market.
(m) The Class A Notes On or prior to the Closing Date, the Issuer shall have been rated “BBBsf”, provided to each of the Class B Notes shall have been rated “BBsf” Initial Purchasers and counsel to the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (“Fitch”), and, to the extent that Fitch expresses an outlook with respect available, drafts of Transaction Agreements to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as be executed on the closing date of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings andMerger, if applicable, 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”later), and, including but not limited to legal opinions relating to the extent that Kroll expresses an outlook Transactions. CSFBC may waive compliance with respect any conditions to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as the obligations of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookInitial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation of the Initial Purchasers to purchase and pay for the Purchased Notes Purchasers' obligations hereunder will be subject to the accuracy of the representations and warranties herein made hereinon the part of the Seller, FSC and the Servicer, to the accuracy of the statements of the officers of each of the Seller, FSC and the Servicer made pursuant heretoto the provisions hereof, to the performance by the DepositorSeller, Conn Appliances, FSC and the Issuer and Conn’s, Inc. Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from Ernst & Young LLP, independent certified public accountantsfully executed copies of this Agreement, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum Supplemented Pooling Agreement and the Report, in each case in form other Related Documents duly executed and substance reasonably satisfactory to you and your counseldelivered by the parties thereto.
(b) There Subsequent to the execution and delivery of this Agreement and prior to the Issuance Date, there shall not have occurred and be continuing (i) any change, or any development involving a prospective change, in or affecting particularly the conditionbusiness or properties of the Seller, financial FSC, the Servicer or otherwiseSpirit of America which, in the reasonable judgment of the Initial Purchasers after consultation with the Seller and the Servicer, materially impairs the investment quality of the Offered Certificates; (ii) any reduction in or withdrawal of the rating of the Certificates issued by the Trust or any other debt securities of the Seller, the Servicer or any Affiliate thereof by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or in the earnings, business any public announcement that any such organization has under surveillance or operations review its rating of the IssuerCertificates issued by the Trust or any other debt securities of the Seller, the Depositor, Conn Appliances, Conn’s, Inc. Servicer or any Affiliate thereof (other than an announcement with positive implications of their respective subsidiariesa possible upgrading, thatand no implication of a possible reduction in or withdrawal of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Seller or the Servicer or any Affiliate of the Seller or the Servicer on any exchange or in any over-the-counter market; (iv) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities; (v) any material disruption in commercial banking securities settlement or clearance services; if, in the reasonable judgment of the Initial Purchasers, is material and adverse and that the effect of any such disruption makes it impracticable impractical or inadvisable to market proceed with completion of the Purchased Notes on resale of the terms and Offered Certificates; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the manner contemplated in reasonable judgment of the Preliminary Offering MemorandumInitial Purchasers, the effect of any such outbreak, escalation, declaration, calamity, emergency or change makes it impractical or inadvisable to proceed with completion of the resale of the Offered Certificates.
(c) You The Initial Purchasers shall have received an opinion of in-house counsel to the DepositorColin D. Stern, Conn AppliancesEsq., the Receivables Trust Executive Vice President and the Seller addressed to you, the Trustee and the Receivables TrusteeGeneral Counsel ▇▇ ▇▇arming, dated the Closing Issuance Date and reasonably addressed to the Initial Purchasers, satisfactory in form and substance to you the Representative and your its counsel as to the matters set forth in Exhibit A.
(d) The Initial Purchasers shall have received an opinion of local tax counsel for the Seller and the Servicer, each dated the Issuance Date, regarding certain Ohio and Georgia tax matters in form and substance reasonable satisfactory to the Representative and its counsel.
(de) The Initial Purchasers shall have received an opinion of Mayer, Brown, Rowe & Maw LLP, dated the Issuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, satisfactory in form and substance to the Representative and its counsel as to the matters set forth in Exhibit B. Such counsel shall also deliver a letter, dated the Issuance Date and addressed to the Initial Purchasers, stating that such counsel has participated in conferences with representatives of the Seller and the Servicer, the Initial Purchasers and counsel to the Initial Purchasers concerning the Final Memorandum, and that, on the basis of the information such counsel gained in the course of performing its professional engagement, nothing came to its attention that caused it to believe that the Final Memorandum, as of its date, or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that it need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except for the statements under the headings "Structural Summary--ERISA Considerations for Investors." "Legal Aspects of the Receivables" and "Certain ERISA Considerations", in each case to the extent they constitute matters of law or legal conclusions with respect thereto), and it need not express any belief with respect to the financial statements or other financial, statistical or accounting data contained in the Final Memorandum.
(f) The Initial Purchasers shall have received an opinion of Mayer, Brown, Rowe & Maw LLP, dated the Issuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, to the effect that the transfer of Receivables from the Seller to the Trust creates a first priority perfected security interest in such Receivables in favor of the Trustee, in form and substance satisfactory to the Representative and its counsel.
(g) The Initial Purchasers shall have received an opinion of Squire, Sanders & Dempsey LLP, dated the Issuance Date and addresse▇ ▇▇ ▇he ▇▇▇▇▇▇▇ Purchasers, to the effect that the transfer of Receivables from Spirit of America to the Seller creates a first priority perfected security interest in such Receivables in favor of the Seller, in form and substance satisfactory to the Representative and its counsel.
(h) The Initial Purchasers shall have received an opinion of Mayer, Brown, Rowe & Maw LLP, dated the Issuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, with respect to (a) the nonconsolidation of FSC with the Seller and (b) certain matters relating to the transfer of the Receivables from Spirit of America to the Seller, in each case in form and substance satisfactory to the Representative and its counsel.
(i) The Initial Purchasers shall have received copies of UCC-1 financing statements filed in the offices of the Secretaries of State of the State of Ohio and the District of Columbia, in the case of Spirit of America, and the State of Delaware, in the case of the Seller, reflecting the interests of the Seller and the Trust in the Receivables.
(j) The Representative shall have received an opinion of Orrick, Herrington & Sutcliffe LLP, special counsel for the Initial ▇▇▇▇▇▇▇▇rs, ▇▇▇▇▇▇▇ 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 Issuance Date, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C.
(k) The Initial Purchasers shall have received an opinion from Pepper, Hamilton & Sheetz, counsel for the Trustee, dated the Issuance ▇▇▇e and addressed to the Initial Purchasers, with respect to (A) general corporate matters, the validity enforceability of the NotesRelated Documents to which the Trustee is a party, the security interest due authentication and delivery of the Issuer Offered Certificates and such other matters as the TrusteeRepresentative shall request, respectively, in the Receivables Trust Estate, the security interest of the 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 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 Representative 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 its counsel.
(fl) You The Initial Purchasers shall have received an opinion addressed to you and the Depositor of counsel to the Back-Up Servicera certificate or certificates, 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 Issuance Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 a vice president or more senior officer of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You shall have received certificates dated the Closing Date each of authorized officers of the Depositor, Conn Appliances and the Seller, FSC and the Servicer in which such officers officer, to the best of his or her knowledge after reasonable investigation, shall state that: that (iA) the representations and warranties made by it of the Seller, FSC and the Servicer, as applicable, contained in the other Transaction Documents and this Agreement are true and correctcorrect in all material respects on and as of the Issuance Date, that it (B) the Seller, FSC and the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under hereunder at or prior to the Issuance Date, (C) the representations and warranties of the Seller, FSC or the Servicer, as applicable, in the Related Documents to which it is a party are true on the Issuance Date, except to the extent such agreements on or before the Closing Date representations and warranties relate to an earlier date, and (iiD) since December 7subsequent to the date as of which information is given in the Final Memorandum, 2017 and except as set forth or contemplated in the Final Memorandum or such certificate, there has not occurred any been no material adverse change in or affecting the condition, condition (financial or otherwise, or in the earnings, business or operations ) of the Issuer, the Depositor, Conn Appliances, or the Seller, except FSC or the Servicer, as disclosed to you in writing prior to the date applicable, or any of the Preliminary Offering Memorandumtheir respective Affiliates.
(im) You The Initial Purchasers shall have received evidence reasonably a letter of Ernst & Young addressed to the Seller and the Initial Purchasers r▇▇▇▇▇ing the Receivables, substantially in the form heretofore agreed to and otherwise in form and in substance 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 Representative and its counsel.
(n) The Initial Purchasers shall have received letters from each of the Rating Agencies stating that (i) the transfer Class A Certificates have received a rating of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement"AAA" and "Aaa" by Standard & Poor's and Moody's, respectively, (ii) the transfer Class M Certificates have received ▇ rating of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement"AA" and "Aa2" by Standard & Poor's and Moody's respectively, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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 Class B Certificates 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇▇d a rating of "A" and "A2" by Standard and Poor's and Moody's, ▇▇▇▇▇ & respectively, (iv) the Class C Certificates have ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering Memorandum ▇d a rating of "Baa2" by Moody's and the Offering Memorandum in form and substance reasonably satisfactory to the Initial Purchasers.
(mv) 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 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 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 ▇rating of any certific▇▇▇▇ Bond Rating 91199526 Conn’s 2017-B: Note Purchase Agreement Agency, Inc. (“Kroll”), and, to ▇▇ any other Series issued by the extent that Kroll expresses an outlook with respect to any such rating, such rating carries Trust will not be withdrawn or reduced as a “stable” or more favorable outlook, and you shall have received a letter dated as result of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that issuance of the Purchased Notes have such ratings and, if applicable, outlookCertificates.
Appears in 1 contract
Sources: Certificate Purchase Agreement (Charming Shoppes Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation of the several Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made hereinon the part of the Issuer and the 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 Guarantors made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. the Guarantors of their obligations hereunder, hereunder in all material respects and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Representative, on behalf of the Initial Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP (“KPMG”) and Ernst & Young LLPLLP (“E&Y”), 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 you the Initial Purchasers concerning certain financial information with respect to Holdings and your counselits subsidiaries set forth in the General Disclosure Package.
(b) There 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 (i) any change, or any development or event involving a prospective change, in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatHoldings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, (ii) any downgrading in the rating of any debt securities of 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 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 that the Issuer or 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 Representative, 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 Purchased Notes secondary market, (iv) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange or any setting of minimum prices for trading on such exchange, (v) any banking moratorium declared by U.S. federal or New York authorities, (vi) any major disruption of settlements of securities, payment or clearance services in the manner contemplated United States, or (vii) 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 Preliminary Offering Memorandum.
(c) You shall have received an opinion reasonable judgment of in-house counsel to the Depositor, Conn AppliancesRepresentative, the Receivables Trust 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 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 counselOffered Securities.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have delivered (i) received an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptionsopinion, 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, (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 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 ▇▇▇▇▇▇▇▇, from L▇▇▇▇▇▇ & FingerGage LLP, P.A.Missouri counsel for the Issuer, counsel in the form of Exhibit B hereto and reasonably acceptable to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables TrustInitial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date Date, from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto 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 acceptable to the DepositorInitial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Issuer Closing Date, from A▇▇▇▇ & R▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petitionInitial Purchasers.
(h) You The Initial Purchasers shall have received certificates from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date of authorized officers Date, with respect to the incorporation of the DepositorIssuer, Conn Appliances the validity of the Offered Securities, the Final Offering Memorandum and the SellerGeneral Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers 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 officers, to the best of their knowledge and after reasonable investigation, shall state that: (i) on behalf of the Issuer and the Guarantors that the representations and warranties made by it of the Issuer and the Guarantors in the other Transaction Documents and this Agreement are true and correct, that it has the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on its their part to be performed or satisfied under such agreements on hereunder at or before prior to the Closing Date Date, and (ii) since December 7that, 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 subsequent to the date of the Preliminary 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.
(ik) You The Issuer and the Guarantors shall have received evidence reasonably satisfactory to you that, on or before executed and delivered 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Registration Rights Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entityIndenture.
(l) You The Initial Purchasers shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP been furnished with respect to wiring instructions for the Preliminary Offering Memorandum application of the proceeds of the Offered Securities in accordance with this Agreement and the Offering Memorandum in form and substance such other information as they may reasonably satisfactory to the Initial Purchasersrequest.
(m) The Class A Notes 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 rated “BBBsf”complied with.
(n) On or prior to the Closing Date, the Class B Notes Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been rated “BBsf” entered into by the parties thereto, and the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. (“Fitch”), and, to Collateral Agent and the extent that Fitch expresses an outlook with respect to any such rating, such rating carries a “stable” or more favorable outlook, and you Initial Purchasers shall have received a letter 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 Representative have received documentation reasonably satisfactory to it evidencing the termination of such liens.
(r) On or prior to the Closing Date, the Initial Purchasers shall have received a completed certificate in the form attached to the Collateral Agreement (the “Perfection Certificate”) to be dated as of the Closing Date from FitchDate, or other evidence satisfactory to youexecuted by an executive officer of the Issuer, confirming that the Purchased Notes have such ratings andtogether with all attachments contemplated thereby, if applicable, outlook.
(n) The Class A Notes which shall have been rated “BBB-(sf)”, the Class B Notes shall have been rated “BB-(sf)” be correct 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated complete as of the Closing Date from KrollDate. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, or other evidence satisfactory certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. The Representative may in their sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookobligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation respective obligations of the Initial Purchasers to purchase and pay for the Purchased Notes Firm Offered 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 on the part of the Company when made hereinand as of such respective dates, to the accuracy of the statements of officers of the Company made in certificates delivered pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Company of their its respective obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You No Initial Purchaser shall have received from Ernst & Young LLP, independent certified public accountants, been advised by the Report Company or shall have discovered and letters with respect disclosed to the Preliminary Offering Memorandum, Company that the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to you and your counsel.
(b) There shall not have occurred any change, or any development involving a prospective changeamendment or supplement thereto, contains an untrue statement of fact which, in the conditionopinion of counsel for the Initial Purchasers, financial or otherwiseis material, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatomits to state a fact which, in the reasonable judgment opinion of counsel for the Initial Purchasers, is material and adverse is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and that makes it impracticable other legal matters incident to market the Purchased Notes on authorization, form and validity of this Agreement, the terms Indenture, the Registration Rights Agreement, the Offered Securities and in the manner contemplated in the Preliminary Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to the Initial Purchasers.
(c) You On each Closing Date, there shall have received an opinion of in-house counsel been furnished to the Depositor, Conn Appliances, Initial Purchasers the Receivables Trust and the Seller opinion (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.
(dInitial Purchasers) of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLPZavis & Rosenman, special counsel to for 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 exceptionsCompany, dated the such Closing Date, Date and in form and substance reasonably satisfactory to counsel for the Initial Purchasers, with respect substantially to the effect that:
(Ai) general corporate mattersThe Company and each of its subsidiaries have been duly incorporated or organized, the validity of the Notesas applicable, the security interest of the Issuer and the Trusteeare validly existing as corporations, respectivelylimited liability companies, trusts or other entities, in good standing under the Receivables Trust Estatelaws of their respective jurisdictions of incorporation or organization and have all corporate, limited liability company or trust power and authority, as applicable, necessary to own or hold their respective properties and conduct the security interest of the Receivables Trust businesses in the Trust Estate, which they are engaged;
(Bii) certain United States federal income tax matters contained The Company has an authorized capitalization as set forth in the Preliminary Offering Memorandum and the Offering Memorandum, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Offering Memorandum; and all of the issued shares of capital stock, limited liability company interest or trust shares, as applicable, of each subsidiary of the Company have been duly and validly authorized and issued and to the 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;
(Ciii) certain matters 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) 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 Company or any security convertible or exchangeable for capital stock of the Company and there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by laws or any agreement or other instrument known to such counsel;
(v) This Agreement has been duly authorized, executed and delivered by the Company;
(vi) Each of the Indenture and the Registration Rights Agreement has been duly authorized, 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 Company. The Indenture is enforceable against the Company in accordance with its terms, except 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 the treatment 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 transfer indemnification and contribution provisions thereof, may be limited by considerations of Receivables public policy;
(vii) The Offered Securities have been duly authorized by the Seller Company and, when executed, authenticated and delivered in accordance with this Agreement and the Depositor; 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 (Dregardless 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 effect that a bankruptcy court would not disregard the separate legal existence benefits 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, Indenture;
(viii) The statements 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 under the captions "Description of the Debentures," "Description of Capital Stock" and substance reasonably satisfactory "Notice to Investors" insofar as they purport to summarize the Initial Purchasers dated provisions of the Closing Date.
(e) You shall have received an opinion addressed to you Indenture, the Offered Securities and the Depositor of K&L Gates, LLP, counsel to Common Stock (including the Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(fConversion Shares) 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 accurate 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.material respects;
Appears in 1 contract
Sources: Purchase Agreement (Alloy Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein (as though made hereinon such Closing Date), to the accuracy of the statements of Company officers made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Company of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Representatives shall have received from Ernst & Young LLPa letter, addressed to the Initial Purchasers, dated the date hereof, of PricewaterhouseCoopers LLP confirming that they are an independent certified registered public accountantsaccounting firm within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable sections of Regulation S-X;
(ii) they have read the minutes of the 2010 meetings of the stockholders, the Report Board of Directors, Nominating and letters Corporate Governance Committee, Audit Committee, and Special Committee of the Board of Directors of the Company and its subsidiaries as set forth in the minute books at March 24, 2010, and have been advised by the officials of the Company that the minutes of all such meetings through that date were set forth therein (except for such minutes as set forth therein which were not approved in final form, for which they received drafts, and which drafts officials of the Company represented include all substantive actions taken at such meeting), and have carried out other procedures to March 24, 2010 (their work not having extended to March 25, 2010), but the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and would not necessarily reveal matters of significance with respect to the Preliminary comments in the following paragraph (iv), so they make no representations as to the sufficiency of the foregoing procedures for the purposes of those receiving the letter;
(iii) they have inquired of certain officials of the Company who have responsibility for financial and accounting matters whether (A) at March 24, 2010 there was any change in the capital stock or increase in long-term debt of the Company and subsidiaries consolidated as compared with amounts shown in the January 3, 2010 consolidated balance sheet incorporated by reference in the Offering Memorandum, or (B) for the period from January 4, 2010 to March 24, 2010, there were any decreases, as compared with the corresponding period in the preceding year, in total revenue, and on the basis of these inquiries and their reading of the minutes as described in paragraph (iii) above, nothing came to their attention that caused them to believe that there was any such change, increase or decrease, except in all instances for changes, increases or decreases, that the Offering Memorandum discloses have occurred or may occur, except that (C) capital stock increased by approximately $371,000 due to the exercise of employee stock options and vesting of restricted stock units, and (D) the Report, in each case in form and substance reasonably satisfactory carrying amount of long-term debt increased by $5,436,000 due to you and your counselthe accretion of debt discount.
(b) There 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, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatCompany and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including the Representatives, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of 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 that the 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 a majority in interest of the Initial Purchasers including the Representatives, 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 Purchased Notes secondary market; (iv) any material suspension or material limitation of trading in securities generally on the terms and 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 Company on any exchange or in the manner contemplated 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 Preliminary Offering MemorandumUnited States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States or the Philippines, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Initial Purchasers including the Representatives, 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 Securities.
(c) You The Representatives shall have received an opinion opinion, dated such Closing Date, of in-house ▇▇▇▇▇ Day, counsel for the Company, as 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 matters described in form and substance to you and your counsel.Annex B.
(d) The Representatives shall have received (i) an opinion of Mourant du Feu & Jeune, Cayman Islands counsel for the Company, substantially in the form attached as Annex C and (ii) an opinion of ▇▇▇▇▇▇▇ Boss ▇▇▇▇▇ ▇▇▇▇▇ LLP, special Swiss counsel for the Company, as 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, matters described 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, (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 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.Annex D.
(e) You The Representatives shall have received an opinion addressed to you and the Depositor of K&L Gatesfrom Skadden, LLPArps, counsel to the TrusteeSlate, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.▇▇▇▇ LLP, counsel to for the Receivables Trust Trustee and special Delaware counsel to the DepositorInitial Purchasers, the Issuer and the Receivables Trustsuch opinion or opinions, dated the such Closing Date and reasonably satisfactory in form and substance to you and your counselDate, including with respect to certain matters 91199526 Conn’s 2017-B: Note Purchase Agreement under Delaware law with respect to the Depositorincorporation of the Company, the Issuer validity of the Offered Securities delivered on such Closing Date, and other related matters as the Representatives may require, and the Receivables Trust and Company shall have furnished to such counsel such documents as they may reasonably request for the authority purpose of the Depositor and the Issuer enabling them to file a voluntary bankruptcy petitionpass upon such matters.
(hf) You The Representatives shall have received certificates a certificate, dated the such Closing Date of authorized officers Date, of the Depositor, Conn Appliances Chief Executive Officer or any Vice President and a principal financial or accounting officer of the Seller, Company in which such officers officers, to the best of their knowledge after reasonable investigation, shall state that: (i) the representations and warranties made by it of the Company in the other Transaction Documents and this Agreement are true and correct, that it ; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under hereunder at or prior to such agreements on or before Closing Date; and, subsequent to the Closing Date and (ii) since December 7date of the most recent financial statements in the General Disclosure Package, 2017 there has not occurred any been no material adverse change change, nor any development or event involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the IssuerCompany and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(g) The Representatives shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the Depositor, Conn Appliances, or the Sellerrequirements of subsection (a) of this Section, except as disclosed that the specified date referred to you in writing such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(h) On or prior to the date of this Agreement, the Preliminary Offering Memorandum.
(i) You Representatives shall have received evidence 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 the Representatives prior to the date of this Agreement. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably satisfactory to you that, requests. The Representatives may in its sole discretion waive on or before the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the transfer behalf of the interest Initial Purchasers compliance with any conditions to the obligations of the Seller Initial Purchasers hereunder, whether in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the transfer respect of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 more favorable outlook, and you shall have received a letter dated as of the Optional Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookotherwise.
(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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Sources: Purchase Agreement (Sunpower Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Issuer and Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Holdings of their obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from 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 you and your counsel.
(b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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 Trusteeletter, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel LLP in a form satisfactory to the DepositorInitial Purchasers in all respects.
(b) Subsequent to the execution and delivery of this Agreement, Conn Appliances, the Receivables Trust, the Seller and the Issuer, there shall not have delivered occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that 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) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, 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 Securities; (B) any downgrading in the rating of any debt securities of the Company 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 the Company (other than an opinion announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or opinionslimitation of trading in securities generally on the New York Stock Exchange, subject or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to customary qualificationsproceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, assumptionsor both, limitations and exceptionswould constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasersof Simpson, 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, (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 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 Thacher & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & 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 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP with respect which 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 days prior to the Preliminary Offering Memorandum Closing Date for the purposes of this subsection.
(i) The Issuer , Holdings and the Offering Memorandum Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in form accordance with the rules and substance reasonably satisfactory regulations adopted by the NASD relating to trading in the Initial PurchasersPORTAL market.
(m) The Class A Notes On or prior to the Closing Date, the Issuer shall have been rated “BBBsf”, provided to each of the Class B Notes shall have been rated “BBsf” Initial Purchasers and counsel to the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (“Fitch”), and, to the extent that Fitch expresses an outlook with respect available, drafts of Transaction Agreements to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as be executed on the closing date of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings andMerger, if applicable, 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”later), and, including but not limited to legal opinions relating to the extent that Kroll expresses an outlook Transactions. CSFBC may waive compliance with respect any conditions to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as the obligations of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookInitial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased 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 agreements on the part of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made hereinand, 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 the Company made in any certificates pursuant heretoto the provisions hereof, to the timely performance by the Depositor, Conn Appliances, the Issuer Company of its covenants and Conn’s, Inc. of their other obligations hereunder, and to each of the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementconditions:
(a) You On the date hereof, the Representatives shall have received from Ernst & Young PricewaterhouseCoopers LLP, independent certified public accountantsaccountants for the Company, a letter dated the date hereof addressed to the Initial Purchasers, the Report form of which is attached as Exhibit A.
(b) For the period from and letters after the date of this Agreement and prior to the Closing Date and, with respect to the Preliminary Offering MemorandumAdditional Securities, any Subsequent Closing Date:
(i) there has not occurred any Material Adverse Change, the effect of which, in the sole judgment of the Representatives, is so material and adverse as to make it impractical or inadvisable to proceed with 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 Securities as contemplated by the Preliminary Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to you and your counsel.Final Offering Memorandum; and
(biii) There there shall not have occurred any changedowngrading, nor shall any notice have been given of any intended or potential downgrading or of any development involving review for a prospective possible change that does not indicate the direction of the possible change, in the condition, financial or otherwise, or in the earnings, business or operations rating accorded any securities of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. Company or any of their respective subsidiaries, that, in its subsidiaries by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under 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 MemorandumSecurities Act.
(c) You shall have received an opinion On each 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) any Subsequent Closing Date, the Representatives shall have received the opinions of W▇▇▇▇▇ ▇▇▇▇▇▇ P▇▇▇▇▇▇▇▇ ▇▇▇▇ and D▇▇▇ LLP, special counsel to for the DepositorCompany, 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, (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 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 F▇▇▇▇▇▇▇▇▇ & B▇▇▇▇, PA, Minnesota counsel for the Company, and in-house counsel, dated as of such Closing Date, substantially the forms of which are attached as Exhibits B, C and D, respectively.
(d) On each of the Closing Date and any Subsequent Closing Date, the Representatives shall have received the opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇ & Finger, P.A.▇▇, counsel for the Initial Purchasers, dated as of such Closing Date, in form and substance satisfactory to, and addressed to, the Representatives, with respect to the Receivables Trust Trustee issuance and special Delaware counsel to sale of the DepositorSecurities, the Issuer Registration Statement, the Offering Memorandum and other related matters as the Representatives may reasonably require, and the Receivables Trust, dated 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 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 Depositorany Subsequent Closing Date, the Issuer and the Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petition.
(h) You Representatives shall have received certificates 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 the as of such Closing Date of authorized officers of to the Depositor, Conn Appliances and the Seller, in which such officers shall state effect that: :
(i) the representations and representations, warranties made by it of the Company in the other Transaction Documents and this Agreement are true and correctcorrect on and as of the Closing Date or the Subsequent Closing Date, that it as the case may be, with the same force and effect as though expressly made on and as of such Closing Date or such Subsequent Closing Date, as the case may be; and
(ii) since the date of the most recent financial statements included or incorporated by reference in the Final Offering Memorandum (exclusive of any amendment or 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 under hereunder at or prior to such agreements on Closing Date or before such Subsequent Closing Date, as the case may be.
(f) On each of the Closing Date and (ii) since December 7any Subsequent Closing Date, 2017 there has not occurred any material adverse change the Representatives shall have received from PricewaterhouseCoopers LLP, independent public accountants for the Company, a letter dated such date, in or affecting form and substance satisfactory to the conditionRepresentatives, financial or otherwise, or to the effect that they reaffirm the statements made in the earnings, business or operations letter furnished by them pursuant to subsection (a) of the Issuer, the Depositor, Conn Appliances, or the Sellerthis Section 8, except as disclosed that the specified date referred to you in writing therein for the carrying out of procedures shall be no more than three business days prior to the date Closing Date or Subsequent Closing Date, as the case may be.
(g) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement (in form and substance satisfactory to the Initial Purchasers and the Company), and the Registration Rights Agreement shall be in full force and effect.
(h) The Securities shall have been designated PORTAL-eligible securities in accordance with the rules and regulations of the Preliminary Offering Memorandum.National Association of Securities Dealers, Inc.
(i) You The Company shall have received evidence reasonably satisfactory caused the Conversion Shares to you thatbe approved for listing, subject to issuance, 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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.New York Stock Exchange,
(j) You On or before each of the Closing Date and any Subsequent Closing Date, the Representatives and counsel for the Initial Purchasers shall have received evidence such information and documents as they may reasonably satisfactory require for the purposes of enabling them to you thatpass upon the issuance and sale of the Securities as contemplated herein. If any condition specified in this Section 8 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or before prior to the Closing DateDate and, 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 related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory Additional Securities, at any time prior to the Initial Purchasers.
(m) The Class A Notes applicable Subsequent Closing Date, which termination shall have been rated “BBBsf”be without liability on the part of any party to any other party, 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”except that Section 7(k), andSection 10, to the extent that Fitch expresses an outlook with respect to any Section 11, Section 12 and Section 16 shall at all times be effective and shall survive 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, outlooktermination.
(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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Sources: Purchase Agreement (Medtronic Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, each of the Issuer and Conn’s, Inc. TILC of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), 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 earningsover‑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, business outbreak or operations 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 DepositorSecretary of TILC, Conn Appliancesand (iii) such other law firms acceptable to the Initial Purchasers and their counsel, Conn’sto 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, Inc. 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 Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) 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”;
(vi) 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;
(vii) 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 reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer 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;
(viii) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance and sale of the Offered Notes on and compliance with the terms and provisions thereof will not result in a breach or violation of any of the manner 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 in by this Agreement;
(ix) Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.
Circular or (cii) You shall have received an opinion the Final Offering Document, or any amendment or supplement thereto, as of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Applicable Time 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 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 form and substance reasonably satisfactory a schedule, if any, to such counsel’s letter, which information, when taken together with the Initial PurchasersPreliminary Offering Circular, with respect to (A) general corporate matterswill comprise the General Disclosure Package, the validity as of the NotesApplicable 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 security interest statements therein not misleading;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the 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 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.TILC;
(exi) 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 It is not necessary 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 connection 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(lxii) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Class B Notes shall have been rated Servicing Agreement”, “BBsfDescription 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 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 Description of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that Offered Notes and the Purchased Notes have such ratings and, if applicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)Indenture”, insofar as they purport to summarize certain terms of the Class B Offered 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 Agencyapplicable Transaction Documents, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries constitute a “stable” or more favorable outlook, and you shall have received a letter dated as fair summary of the Closing Date from Kroll, or other evidence satisfactory provisions purported to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.be summarized;
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation of the several Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made hereinon the part of the Issuer and the 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 Guarantors made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. the Guarantors of their obligations hereunder, hereunder in all material respects and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of Ernst & Young LLPLLP (“E&Y”), 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 you the Initial Purchasers concerning certain financial information with respect to Holdings and your counselits subsidiaries set forth in the General Disclosure Package.
(b) There 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 (i) any change, or any development or event involving a prospective change, in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatHoldings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of 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 that the Issuer or 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, 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 Purchased Notes secondary market, (iv) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange or any setting of minimum prices for trading on such exchange, (v) any banking moratorium declared by U.S. federal or New York authorities, (vi) any major disruption of settlements of securities, payment or clearance services in the manner contemplated United States, or (vii) 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 Preliminary Offering Memorandum.
(c) You shall have received an opinion reasonable judgment of in-house counsel to the Depositor, Conn AppliancesInitial Purchasers, the Receivables Trust 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 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 counselOffered Securities.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have delivered (i) received an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptionsopinion, 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, (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 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 from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FingerGage LLP, P.A.Missouri counsel for the Issuer, counsel in the form of Exhibit B hereto and reasonably acceptable to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables TrustInitial Purchasers.
(f) The Initial Purchasers shall have received an opinion, 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to LLC, Ohio counsel for the Preliminary Offering Memorandum Issuer, in the form of Exhibit C hereto and the Offering Memorandum in form and substance reasonably satisfactory acceptable to the Initial Purchasers.
(mg) 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 more favorable outlook, and you Initial Purchasers shall have received a letter an opinion, dated as of the Closing Date Date, from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, 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& ▇▇▇▇▇ LLP, Inc. (“Kroll”)Texas counsel for the Issuer, and, in the form of Exhibit D hereto and reasonably acceptable to the extent that Kroll expresses an outlook Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to any such ratingthe incorporation of the Issuer, such rating carries a “stable” or more favorable outlookthe validity of the Offered Securities, the Final Offering Memorandum and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and you 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 letter certificate, dated as the Closing Date, of the Closing Date from KrollPresident or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, or other evidence satisfactory to youthe best of their knowledge and after reasonable investigation, confirming shall state on behalf of the Issuer and the Guarantors that the Purchased Notes 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 ratings andcertificate.
(j) The Initial Purchasers shall have received a letter, if applicabledated the Closing Date, outlookfrom E&Y that meets the requirements of subsection (a) of this Section.
(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. 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. The Initial Purchasers may in their 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 obligation of the several Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made hereinon the part of the Issuer and the 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 Guarantors made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. the Guarantors of their obligations hereunder, hereunder in all material respects and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You UBS, on behalf of the Initial Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP (“KPMG”) and Ernst & Young LLPLLP (“E&Y”), 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 you the Initial Purchasers concerning certain financial information with respect to Holdings and your counselits subsidiaries set forth in the General Disclosure Package.
(b) There 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 (i) any change, or any development or event involving a prospective change, in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatHoldings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, (ii) any downgrading in the rating of any debt securities of 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 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 that the Issuer or 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 including UBS, 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 Purchased Notes secondary market, (iv) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange or any setting of minimum prices for trading on such exchange, (v) any banking moratorium declared by U.S. federal or New York authorities, (vi) any major disruption of settlements of securities, payment or clearance services in the manner contemplated United States, or (vii) 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 Preliminary Offering Memorandum.
(c) You shall have received an opinion reasonable judgment of in-house counsel to a majority in interest of the Depositor, Conn AppliancesInitial Purchasers including UBS, the Receivables Trust 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 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 counselOffered Securities.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have delivered (i) received an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptionsopinion, dated the Closing Date, from L▇▇▇▇▇▇ & G▇▇▇ ▇.▇., Missouri counsel for the 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 Issuer, the validity of the Offered Securities, the Final Offering Memorandum and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers 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) The respective obligations of the Issuer and the Guarantors and of the Initial Purchasers hereunder are subject to the 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, with respect to (A) general corporate matters, the validity deposit approximately $218.8 million aggregate principal amount of the Notes, 9% Notes with the security interest of escrow agent under the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the 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 Escrow Agreement prior 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 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 satisfactory request. UBS may in form and substance to you and your counsel.
(f) You shall have received an opinion addressed to you and its sole discretion waive on behalf of the Depositor of counsel Initial Purchasers compliance with any conditions 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 obligations of the Depositor and the Issuer to file a voluntary bankruptcy petitionInitial Purchasers hereunder.
(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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation of the Initial Purchasers to purchase and pay for the Purchased Notes will be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers made pursuant hereto, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. of their obligations hereunder, and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You shall have received from 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 you and your counsel.. Conn’s 2021-A: Note Purchase Agreement
(b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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, 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, (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 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 ▇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 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 7November 10, 2017 2021, 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.. Conn’s 2021-A: Note Purchase Agreement
(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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇M▇▇▇▇▇, ▇▇▇▇▇ & ▇B▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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-sfBsf” 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Sources: Note Purchase Agreement (Conns Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, each of the Issuer and Conn’s, Inc. TILC of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), 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, 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 earningsover-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, business outbreak or operations 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 DepositorSecretary of TILC, Conn Appliancesand (iii) such other law firms acceptable to the Initial Purchasers and their counsel, Conn’sto the effect that:
(A) 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, Inc. 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;
(B) 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;
(C) 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;
(D) 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 Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(E) 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”;
(F) 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;
(G) 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 reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer 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;
(H) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance of the Offered Notes on 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 manner 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 in by this Agreement;
(I) Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.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;
(cJ) You shall have received an opinion This Agreement has been duly authorized, executed and delivered by each of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Issuer 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, (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 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.;
(eK) 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 It is not necessary 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 connection 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(lL) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Class B Notes shall have been rated Servicing Agreement”, “BBsfDescription 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 Documents” 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 Description of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that Offered Notes and the Purchased Notes have such ratings and, if applicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)Indenture”, insofar as they purport to summarize certain terms of the Class B Offered 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 Agencyapplicable Transaction Documents, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries constitute a “stable” or more favorable outlook, and you shall have received a letter dated as fair summary of the Closing Date from Kroll, or other evidence satisfactory provisions purported to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.be summarized;
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation of the Initial Purchasers to purchase and pay for the Purchased Notes Class A Certificates will be subject to the accuracy of the representations and warranties made on the part of NMG and the Seller herein, to the accuracy of the statements of officers of NMG and the Seller made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. of their obligations hereunder, Seller hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from Ernst Deloitte & Young LLPTouche LLP a letter or letters, independent certified public accountants, dated the Report and letters with respect to date of the Preliminary Final Offering Memorandum, confirming that they are independent public accountants within the Offering Memorandum meaning of the Securities Act and the Report, in each case otherwise in form and substance reasonably satisfactory to you the Initial Purchasers and your counselcounsel to the Initial Purchasers.
(b) There Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the condition, financial or otherwise, or in the earnings, business or operations properties of the Issuer, Trust or NMG or the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatSeller which, in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable to market could materially impair the Purchased Notes on investment quality of the terms and Class A Certificates; (ii) any downgrading in the manner contemplated rating of any securities of the Trust or NMG or the Seller, by any "nationally recognized statistical rating organization" (as such term is 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 securities of the Trust or NMG or the Seller (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension of trading of any securities of NMG or the Seller on any exchange or in the Preliminary Offering Memorandumover-the-counter market or any setting of minimum prices for trading on such exchange; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Initial Purchasers, the effects of any such outbreak, escalation, declaration, calamity or emergency could make it impractical or inadvisable to proceed with completion of the sale of, and payment for, the Class A Certificates.
(c) You The Initial Purchasers 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 exceptionsa certificate, dated the Closing Date, signed by the President or any Vice President and the principal financial or principal accounting officer or the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of each of NMG and the Seller to the effect that the signers of such certificate, certify on behalf of NMG and the Seller, that they have carefully examined the Basic Documents and the Final Offering Memorandum and stating that:
(i) the representations and warranties of NMG and the Seller in the Basic Documents are true and correct in all material respects at and as of the date of such certificate as if made on and as of such date (except to the extent they expressly relate to an earlier date);
(ii) NMG and the Seller have complied, in all material respects, with all the agreements and satisfied, in all material respects, all the conditions on the part of NMG and the Seller to be performed or satisfied at or prior to the date of such certificate; and
(iii) nothing has come to the attention of NMG or the Seller that would lead NMG or the Seller to believe that the Final Offering Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Mayer, Brown & Platt shall have delivered a favorabl▇ ▇▇ini▇▇ ▇▇ted 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 NMG and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the 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 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 furnished to you and the Depositor of K&L Gates, LLP, such counsel to the Trustee, dated the Closing Date and such documents as they 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications request for the related entitypurpose of enabling them to pass on such matters.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Sources: Class a Purchase Agreement (Neiman Marcus Group Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer, TILC, TRIP Holdings and Triumph Holdings, to the accuracy of the statements of officers of the Issuer, TILC, TRIP Holdings and Triumph Holdings made pursuant heretoto the provisions hereof, to the performance by each of the DepositorIssuer, Conn AppliancesTILC, the Issuer TRIP Holdings and Conn’s, Inc. Triumph Holdings of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, TILC, TRIP Holdings or Triumph Holdings and its subsidiaries taken as one enterprise which, in the Depositorjudgment of the Initial Purchasers or any of their affiliates, Conn Appliancesis 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, Conn’sTRIP Holdings or Triumph Holdings by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), Inc. or any public announcement that any such organization has under surveillance or review its rating of any debt securities of 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, TILC, TRIP Holdings or 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, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer, TILC, TRIP Holdings or 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 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;
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 (as 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, TILC, TRIP Holdings or Triumph 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, TILC, TRIP Holdings or Triumph Holdings, as applicable, enforceable against the Issuer, TILC, TRIP Holdings or Triumph 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;
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 Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
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”;
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;
ix. There are no pending actions, suits or proceedings against or affecting the Issuer, 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, TRIP Holdings, Triumph Holdings or any of their respective subsidiaries, would individually or in the reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer, TILC, TRIP Holdings or 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;
x. The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer, TILC, TRIP Holdings or Triumph Holdings is material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance of the Offered Notes on 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 manner 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, TILC, TRIP Holdings or Triumph Holdings is a party or by which the Issuer, TILC, TRIP Holdings or Triumph Holdings is bound or to which any of the properties of the Issuer, TILC, TRIP Holdings or Triumph Holdings is subject, or the organizational or formation documents of the Issuer, TILC, TRIP Holdings or Triumph Holdings, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated in by this Agreement;
xi. Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.
Circular or (cii) You shall have received an opinion the Final Offering Document, or any amendment or supplement thereto, as of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Applicable Time 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 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 form and substance reasonably satisfactory a schedule, if any, to the Initial Purchaserssuch counsel’s letter, which information, when taken together 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, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and Circular, will comprise the Offering MemorandumGeneral Disclosure Package, (C) certain matters relating to the treatment as of the transfer Applicable Time and as of Receivables 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;
xii. This Agreement has been duly authorized, executed and delivered by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence each of the Issuer, the Depositor or the Receivables Trust TILC, TRIP Holdings and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, Triumph Holdings;
xiii. It is not necessary in connection 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to xiv. The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, “The Railcars”, “The Lessees”, “The Leases”, “Triumph Holdings and TRIP Holdings”, “TILC”, “The Servicer”, “Description of the Class B Notes shall have been rated Servicing Agreement”, “BBsfDescription 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” 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 Description of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that Offered Notes and the Purchased Notes have such ratings and, if applicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)Indenture”, insofar as they purport to summarize certain terms of the Class B Offered 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 Agencyapplicable Transaction Documents, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries constitute a “stable” or more favorable outlook, and you shall have received a letter dated as fair summary of the Closing Date from Kroll, or other evidence satisfactory provisions purported to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.be summarized;
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased Notes Securities will be subject to the accuracy of the representations and warranties made hereinon the part of the Company herein at the Execution Time, the Closing Date and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of Company officers made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Company of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You On or prior to the date of this Agreement, the Representatives shall have received from a letter, dated the date of delivery thereof, of Ernst & Young Young, LLP, confirming that they are independent certified public accountants, accountants within the Report meaning of the Act and letters with respect the applicable published Rules and Regulations thereunder and stating to the Preliminary effect that:
(i) in their opinion the financial statements and any schedules and any summary of earnings examined by them and included in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included in the Offering Memorandum;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, and any summary of earnings included in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements and summary of earnings for them to be in conformity with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in the Offering Memorandum, the unaudited consolidated net sales, net operating income, net income and net income per share amounts or other amounts constituting such "capsule" information and described in such letter do not agree with the corresponding amounts set forth in the unaudited consolidated financial statements or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of the such letter, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net assets, as compared with amounts shown on the latest balance sheet included in the Offering Memorandum; or
(D) for the period from the closing date of the latest income statement included in the Offering Memorandum to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the Reportperiod of corresponding length ended the date of the latest income statement included in the Offering Memorandum, in consolidated net sales, net operating income or net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (C) and (D) above for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur or which are described in such letter;
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Memorandum (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in form such letter and substance reasonably satisfactory have found such dollar amounts, percentages and other financial information to you be in agreement with such results, except as otherwise specified in such letter. All financial statements and your counselschedules included in material incorporated by reference into the Offering Memorandum shall be deemed included in the Offering Memorandum for purposes of this subsection.
(b) There Subsequent to the Execution Time, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatCompany and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including any Representatives, is material and adverse and that makes it impracticable impractical or inadvisable to market proceed with completion of the Purchased Notes public offering or the sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the manner contemplated over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or New York authorities and any major disruption of settlements of securities or clearance services in the Preliminary Offering MemorandumUnited States; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of a majority in interest of the Initial Purchasers, including the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Securities.
(c) You The Representatives 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 exceptionsopinion, dated the Closing Date, in form and substance reasonably satisfactory of Coudert Brothers LLP, counsel for the Company, to the Initial Purchaserseffect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with respect corporate power and authority to (A) general corporate matters, the validity of the Notes, the security interest of the Issuer own its properties and the Trustee, respectively, conduct its business as described in the Receivables Trust Estate, the security interest of the 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 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 Each of ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ & Finger. and Grolier Incorporated has been duly incorporated and is validly existing as a corporation in good standing under the laws of its state of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, P.A.are fully paid and non-assessable and (except for directors' qualifying shares and except as otherwise set forth in the Offering Memorandum) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) This Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company and the Registration Rights Agreement constitutes a valid and legally binding obligation of the Company enforceable 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 under which the Securities are issued has been duly authorized, executed and delivered by the Company and constitute, and the Securities have been duly authorized and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers, will have been duly executed and delivered by the Company and will constitute, valid and legally binding obligations of the Company enforceable in accordance with their 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; and the Securities conform in all material respects to the description thereof contained in the Offering Memorandum;
(v) No consent, approval, authorization or order of, or filing with, any New York or United States federal governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture, as the case may be, in connection with the issuance or sale of the Securities by the Company, except such as will be obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities laws;
(vi) The execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Indenture and the issuance and sale of the Securities 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 New York or United States Federal statute or the General Corporation Law of Delaware, any rule, regulation or order of any New York or United States Federal governmental agency or body or any court, having jurisdiction over the Company or any of its Material Subsidiaries or any of their properties, or any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Receivables Trust Trustee and special Delaware counsel Company or a Material Subsidiary is a party or by which the Company is bound or 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 which any 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 properties 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 Company or any of 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 AppliancesMaterial Subsidiaries is subject, or the Sellercharter or by-laws of the Company, except for any breaches or violations that will not have a Material Adverse Effect; and the Company has full corporate power and authority to authorize, issue and sell the Securities as disclosed to you in writing prior to the date of the Preliminary Offering Memorandum.contemplated by this Agreement;
(ivii) 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP ▇▇▇. is the registered owner of the trademark "Scholastic"; to the best knowledge of such counsel, neither the Company nor any of its Material Domestic Subsidiaries has received any notice of infringement of or conflict with (or knows of any such infringement or conflict with) asserted rights of others with respect to such trademark, other than such infringements or conflicts that would not, individually or in the Preliminary aggregate, have a Material Adverse Effect on the business conducted or proposed to be conducted by the Company and its Material Domestic Subsidiaries as described in the Offering Memorandum;
(viii) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act required to be registered as such; and
(ix) The descriptions in the Offering Memorandum of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown. In addition, such counsel shall state in such opinion that during the course of the preparation of the Offering Memorandum, they reviewed the Offering Memorandum, participated in conferences with representatives of the Company, its accountants and with representatives of and counsel for the Initial Purchasers, at which the contents of the Offering Memorandum and related matters were discussed, and advised the Company as to the requirements of the Act and the applicable published rules and regulations thereunder. Such counsel shall state that between the date of the Offering Memorandum and the time of delivery of their letter, they have participated in further conferences with representatives of the Company, its accountants and with representatives of the Initial Purchasers (and their counsel), at which the contents of certain portions of the Offering Memorandum and related matters were discussed, and they reviewed certificates of certain officers of the Company and letters from the Company's independent accountants. Although such counsel may state that they are not passing upon or assuming any responsibility for the accuracy, completeness or fairness of any of the statements made in form the Offering Memorandum, on the basis of the information which they gained in the course of rendering the services referred to above, considered in light of such counsel's understanding of the applicable law and substance reasonably satisfactory the experience such counsel has gained through such counsel's practice in this field, they advise the Initial Purchasers that nothing which has come to the Initial Purchasers.
(m) The Class A Notes shall have been rated “BBBsf”attention of such counsel in the course of such review has caused them to believe that the Offering Memorandum contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, such counsel may state that they are not expressing any opinion or belief as to the financial statements or other financial or related statistical data contained in the Offering Memorandum or the material incorporated therein by reference. Such counsel may also rely on opinions of other counsel as to matters of law other than New York law, the Class B Notes shall have been rated “BBsf” Delaware General Corporation Law 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 federal laws of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookUnited States.
(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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
Appears in 1 contract
Sources: Purchase Agreement (Scholastic Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation of the several Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made hereinon the part of the Issuer and the 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 Guarantors made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. the Guarantors of their obligations hereunder, hereunder in all material respects and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Representatives, on behalf of the Initial Purchasers, shall have received from Ernst & Young a customary “comfort letter”, dated the date of this Agreement, of KPMG 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 you the Initial Purchasers concerning certain financial information with respect to Holdings and your counselits subsidiaries set forth in the General Disclosure Package.
(b) There 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 (i) any change, or any development or event involving a prospective change, in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatHoldings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of 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 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 that the Issuer or 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 including Credit Suisse, 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 Purchased Notes secondary market; (iv) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities, payment or clearance services in the manner contemplated United States; or (vii) 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 Preliminary Offering Memorandum.
(c) You shall have received an opinion reasonable judgment of in-house counsel to a majority in interest of the Depositor, Conn AppliancesInitial Purchasers including Credit Suisse, the Receivables Trust 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 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 counselOffered Securities.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and for the Issuer, shall have delivered (i) an opinion or opinions, subject to customary qualifications, assumptions, limitations in substantially the form attached hereto as Exhibit A and exceptions, dated the Closing Date, in form and substance reasonably satisfactory acceptable 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, (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 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 The Initial Purchasers shall have received an opinion addressed to you and the Depositor of K&L Gates, LLP, counsel to the Trusteeopinion, 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 ▇▇▇▇▇▇▇▇, from L▇▇▇▇▇▇ & FingerG▇▇▇ ▇.▇., P.A., Missouri counsel for the Issuer in the form of Exhibit B hereto and reasonably acceptable to the Receivables Trust Trustee and special Delaware counsel to the Depositor, the Issuer and the Receivables TrustInitial 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 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 acceptable to the DepositorInitial 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 Receivables Trust and the authority of the Depositor and the Issuer to file a voluntary bankruptcy petitionInitial Purchasers.
(h) You The Initial Purchasers shall have received certificates a certificate, dated the Closing Date of authorized officers Date, signed by the chief executive officer and the chief financial officer of the DepositorIssuer, Conn Appliances certifying all information for the years 2003 and 2004 in Item 6. Selected Financial Data of the annual report on Form 10-K for the fiscal year ended 2007 for Holdings.
(i) 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 Issuer, the validity of the Offered Securities, the Final Offering Circular and the SellerGeneral Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as 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.
(j) 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 officers, to the best of their knowledge and after reasonable investigation, shall state that: (i) on behalf of the Issuer and the Guarantors that the representations and warranties made by it of the Issuer and the Guarantors in the other Transaction Documents and this Agreement are true and correct, that it has the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on its their part to be performed or satisfied under such agreements on hereunder at or before prior to the Closing Date Date, and (ii) since December 7that, 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 subsequent 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 most recent financial 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 AgreementGeneral Disclosure Package, (ii) the transfer of the interest of the Depositor there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreementcondition (financial or other), (iii) the transfer business, properties or results of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant by the Issuer to the Trustee under the Indenture of a security interest in the interest operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory to you that, on General Disclosure Package or before the Closing Date, UCC-3 financing statements have been or will be submitted for filing as described 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 counselsuch certificate.
(k) You The Initial Purchasers shall have receivedreceived a letter, from each dated the Closing Date, of KPMG which meets the Depositorrequirements of subsection (a) of this Section, Conn Appliances and except that the Seller, specified date referred to in such subsection will be a certificate executed by a secretary or assistant secretary thereof date not more than three business days prior to which shall be attached certified copies of the: (i) organizational documents, (ii) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications the Closing Date for the related entitypurposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) You The Issuer and the Guarantors shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to executed and delivered the Preliminary Offering Memorandum Registration Rights Agreement and the Offering Memorandum in form and substance reasonably satisfactory to the Initial PurchasersIndenture.
(m) The Class A Notes Initial Purchasers shall have been rated “BBBsf”, furnished with wiring instructions for 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 application of the Closing Date from Fitch, or proceeds of the Offered Securities in accordance with this Agreement and such other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookinformation as they may reasonably request.
(n) The Class A Notes Offered Securities shall be eligible for trading in PORTAL upon issuance. 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 rated “BBB-(sf)”complied with.
(o) On or prior to the Closing Date, the Class B Notes Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been rated “BB-(sf)” entered into by the parties thereto, 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 Collateral Agent and the extent that Kroll expresses an outlook with respect to any such rating, such rating carries a “stable” or more favorable outlook, and you Initial Purchasers shall have received a letter copy of each of the duly executed Security Documents and the Credit Agreement.
(p) 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.
(q) All filing fees, taxes and other amounts payable in connection with filings, recordings, registrations and other actions referred to in Section 7(p) shall have been paid or payment by the Issuer provided for to the reasonable satisfaction of the Notes Collateral Agent.
(r) 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 Representatives or another search service reasonably satisfactory to the Representatives, and the Representatives 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 Representatives have received documentation reasonably satisfactory to it evidencing the termination of such liens.
(s) On or prior to the Closing Date, the Initial Purchasers shall have received a completed certificate in the form attached to the Collateral Agreement (the “Perfection Certificate”) to be dated as of the Closing Date from KrollDate, or other evidence satisfactory executed by an executive officer of the Issuer, together with all attachments contemplated thereby, which shall be correct and complete as of the Closing Date. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request. Credit Suisse may in its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookobligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, each of the Issuer and Conn’s, Inc. TILC of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), 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, 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 earningsover-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 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 operations Additional Issuer Information;
(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, 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, TRLWT, TRL VII or TILC, as applicable, enforceable against the DepositorIssuer, Conn AppliancesTRLWT, Conn’sTRL VII or TILC, Inc. 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 Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) 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”;
(vi) 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;
(vii) 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 reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer, 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;
(viii) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer, TRLWT, TRL VII or TILC is material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance of the Offered Notes on 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 manner 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, TRLWT, TRL VII or TILC is a party or by which the Issuer, TRLWT, TRL VII or TILC is bound or to which any of the properties of the Issuer, TRLWT, TRL VII or TILC is subject, or the organizational or formation documents of the Issuer, TRLWT, TRL VII or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated in by this Agreement;
(ix) Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.
Circular or (cii) You shall have received an opinion the Final Offering Document, or any amendment or supplement thereto, as of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Applicable Time 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 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 form and substance reasonably satisfactory a schedule, if any, to such counsel’s letter, which information, when taken together with the Initial PurchasersPreliminary Offering Circular, with respect to (A) general corporate matterswill comprise the General Disclosure Package, the validity as of the NotesApplicable 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 security interest statements therein not misleading;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Trustee, respectively, in the Receivables Trust Estate, the security interest of the 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 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.TILC;
(exi) 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 It is not necessary 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 connection 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(lxii) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Class B Notes shall have been rated Servicing Agreement”, “BBsfDescription 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” 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 Description of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that Offered Notes and the Purchased Notes have such ratings and, if applicable, outlook.
(n) The Class A Notes shall have been rated “BBB-(sf)Indenture”, insofar as they purport to summarize certain terms of the Class B Offered 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 Agencyapplicable Transaction Documents, Inc. (“Kroll”), and, to the extent that Kroll expresses an outlook with respect to any such rating, such rating carries constitute a “stable” or more favorable outlook, and you shall have received a letter dated as fair summary of the Closing Date from Kroll, or other evidence satisfactory provisions purported to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.be summarized;
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Issuer and Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Holdings of their obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from 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 you and your counsel.
(b) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, that, 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 Trusteeletter, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel LLP in a form satisfactory to the DepositorInitial Purchasers in all respects.
(b) Subsequent to the execution and delivery of this Agreement, Conn Appliances, the Receivables Trust, the Seller and the Issuer, there shall not have delivered occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that 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) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, 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 Securities; (B) any downgrading in the rating of any debt securities of the Company 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 the Company (other than an opinion announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or opinionslimitation of trading in securities generally on the New York Stock Exchange, subject or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to customary qualificationsproceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, assumptionsor both, limitations and exceptionswould constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, 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, (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 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ LLP ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the Preliminary Offering Memorandum and incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Memorandum in form Circular, the exemption from registration for the offer and substance reasonably satisfactory sale of the Offered Securities by the Issuer to the Initial PurchasersPurchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which 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 days prior to the Closing Date for the purposes of this subsection.
(i) The Issuer , Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) The Class A Notes On or prior to the Closing Date, the Issuer shall have been rated “BBBsf”, provided to each of the Class B Notes shall have been rated “BBsf” Initial Purchasers and counsel to the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (“Fitch”), and, to the extent that Fitch expresses an outlook with respect available, drafts of Transaction Agreements to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as be executed on the closing date of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings andMerger, if applicable, 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”later), and, including but not limited to legal opinions relating to the extent that Kroll expresses an outlook Transactions. CSFBC may waive compliance with respect any conditions to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as the obligations of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookInitial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made hereinherein on the part of the Issuer, TILC, RIV 2013 and TRP Holdings, to the accuracy of the statements of officers of the Issuer, TILC, RIV 2013 and TRP Holdings made pursuant heretoto the provisions hereof, to the performance by each of the DepositorIssuer, Conn AppliancesTILC, the Issuer RIV 2013 and Conn’s, Inc. TRP Holdings of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLPa third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, independent certified public accountants, in the Report and letters with respect form heretofore agreed to regarding the Preliminary Offering MemorandumCircular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Memorandum and the ReportCircular or Offering Circular, in each case in form and substance reasonably satisfactory to you and your counselas applicable.
(b) There 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, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Issuer, TILC, RIV 2013 or TRP Holdings and its subsidiaries taken as one enterprise which, in the Depositorjudgment of the Initial Purchasers or any of their affiliates, Conn Appliancesis 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, Conn’sRIV 2013 or TRP Holdings by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), Inc. or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC, RIV 2013 or TRP 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, TILC, RIV 2013 or TRP 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, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer, TILC, RIV 2013 or TRP 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 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;
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. RIV 2013 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; RIV 2013 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. TRP 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; TRP 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, TILC, RIV 2013 or TRP 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, TILC, RIV 2013 or TRP Holdings, as applicable, enforceable against the Issuer, TILC, RIV 2013 or TRP 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;
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 Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
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”;
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;
ix. There are no pending actions, suits or proceedings against or affecting the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective subsidiaries, would individually or in the reasonable judgment aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Initial PurchasersIssuer, TILC, RIV 2013 or TRP 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;
x. The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer, TILC, RIV 2013 or TRP Holdings is material a party, and adverse this Agreement and that makes it impracticable to market the Purchased issuance of the Offered Notes on 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 manner 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, RIV 2013, TRP Holdings, or any of their properties, or any agreement or instrument to which the Issuer, TILC, RIV 2013 or TRP Holdings is a party or by which the Issuer, TILC, RIV 2013 or TRP Holdings is bound or to which any of the properties of the Issuer, TILC, RIV 2013 or TRP Holdings is subject, or the organizational or formation documents of the Issuer, TILC, RIV 2013 or TRP Holdings, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated in by this Agreement;
xi. Such counsel have no reason to believe that (i) the Preliminary Offering Memorandum.
Circular or (cii) You shall have received an opinion the Final Offering Document, or any amendment or supplement thereto, as of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust Applicable Time 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 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 form and substance reasonably satisfactory a schedule, if any, to the Initial Purchaserssuch counsel’s letter, which information, when taken together 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, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and Circular, will comprise the Offering MemorandumGeneral Disclosure Package, (C) certain matters relating to the treatment as of the transfer Applicable Time and as of Receivables 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;
xii. This Agreement has been duly authorized, executed and delivered by the Seller and the Depositor; and (D) to the effect that a bankruptcy court would not disregard the separate legal existence each of the Issuer, the Depositor or the Receivables Trust TILC, RIV 2013 and require the substantive consolidation of the assets and liabilities of the Issuer, the Depositor or the Receivables Trust, on the one hand, TRP Holdings;
xiii. It is not necessary in connection 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 offer, sale 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 delivery 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Offered Notes 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 Initial Purchasers pursuant to you thatthis Agreement, 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 the resales of good standingthe Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, (iii) applicable resolutions and (iv) incumbency certifications for to register the related entity.Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to xiv. The statements in the Preliminary Offering Memorandum Circular and the Offering Memorandum in form and substance reasonably satisfactory to Circular under the Initial Purchasers.
(m) captions “The Class A Notes shall have been rated “BBBsfIssuer”, 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 Class A Notes shall have been rated “BBB-(sf)Railcars”, 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. (“KrollThe Lessees”), and, to the extent that Kroll 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 Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.,
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Company and the Guarantor herein, to the accuracy of the statements of officers of the Company and the Guarantor made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, Company and the Issuer and Conn’s, Inc. Guarantor of their obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from Ernst & Young LLPa letter, independent certified public accountantsdated the date of this Agreement, the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case of PricewaterhouseCoopers LLP ("PWC") in form and substance reasonably satisfactory to you and your counselthe Initial Purchasers concerning certain of the financial information set forth in the Offering Document.
(b) There 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, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the IssuerCompany, the Depositor, Conn Appliances, Conn’s, Inc. or any of Guarantor and their respective subsidiariessubsidiaries taken as one enterprise or ARC and its subsidiaries taken as one enterprise, thatwhich, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including CSFB, is material and adverse and that makes it impracticable impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company or ARC 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 the Company or ARC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company or ARC 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 a majority in interest of the Initial Purchasers including CSFB, 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 Purchased Notes secondary market; (iv) any material suspension or material limitation of trading in securities generally on the terms and New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the manner contemplated over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the Preliminary Offering MemorandumUnited States; or (vii) 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 a majority in interest of the Initial Purchasers including CSFB, 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 Securities.
(c) You The Initial Purchasers 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 Trusteeopinion, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel.
(d) Date, of Weil, Gotshal & ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to for the Depositor, Conn Appliances, the Receivables Trust, the Seller Company and the IssuerGuarantor, reasonably acceptable to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Initial Purchasers and substantially in the form of Exhibit A attached hereto.
(d) The Initial Purchasers shall have delivered (i) received an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptionsopinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasersof LeBoeuf, 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, (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 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 ▇▇▇▇▇▇▇▇Lamb, ▇▇▇▇▇▇ & Finger▇▇▇▇▇▇, P.A.L.L.P., regulatory counsel for the Company and the Guarantor, reasonably acceptable to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Initial Purchasers and substantially in the form of Exhibit B attached hereto.
(e) The Initial Purchasers shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Receivables Trust Trustee and special Delaware counsel to the DepositorInitial Purchasers, the Issuer and the Receivables Trustsuch opinions, dated the Closing Date and reasonably satisfactory in form and substance to you and your counselDate, including with respect to certain matters 91199526 Conn’s 2017-B: Note Purchase Agreement under Delaware law with respect to the Depositorformation or incorporation of the Company and the Guarantor, as the case may be, the Issuer validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Company and the Receivables Trust Guarantor to the Initial Purchasers and the authority of resales by the Depositor Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer Company and the Guarantor shall have furnished to file a voluntary bankruptcy petitionsuch counsel such documents as they may request for the purpose of enabling them to pass upon such matters.
(hf) You The Initial Purchasers shall have received certificates a certificate, dated the Closing Date of authorized officers Date, of the Depositor, Conn Appliances President or any Vice President and a principal financial or accounting officer of the Seller, Company in which such officers shall state that: that to the best of their knowledge after reasonable investigation, (iA) the representations and warranties made by it of the Company in the other Transaction Documents and this Agreement are true and correctcorrect in all material respects (without giving duplicative effect to any materiality qualifiers), that it the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on hereunder at or before prior to the Closing Date and (iiB) since December 7, 2017 subsequent to the dates of the most recent financial statements in the Offering Document there has not occurred any been no material adverse change change, nor any development or event involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the IssuerCompany and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(g) In the event the Transactions close on the Closing Date, the DepositorInitial Purchasers shall have received (i) an executed signature page to this Agreement from the Guarantor on the Closing Date, Conn Appliances(ii) a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Seller, except as disclosed to you in writing prior Guarantor similar to the date certificate delivered pursuant to Section 6(f) hereof, (iii) an executed copy of the Preliminary Offering MemorandumCertificates of Merger filed with the Secretary of State of the State of Delaware in connection with the Transactions and (iv) a certificate, dated the Closing Date, of the secretary of the Guarantor certifying as to the organizational documents of the Guarantor and any resolutions of the board with respect to the Transactions. In the event the Transactions do not close on the Closing Date, the Guarantor will deliver an executed signature page to this Agreement on the closing of the Transactions pursuant to Section 5(k) hereof.
(h) In the event the Transactions do not close on the Closing Date, 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 Company certifying that the Company has deposited an amount equal to $223,283,593.75, which represents 97.25% of the aggregate principal amount of the Notes plus accrued and unpaid interest on the Notes to, but not including, March 1, 2004, into the Escrow Account.
(i) You The Initial Purchasers shall have received evidence reasonably satisfactory to you thata letter, on or before dated the Closing Date, UCC-1 financing statements of PWC that meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be submitted for filing in all applicable governmental offices reflecting (i) the transfer of the interest of the Seller in the Receivables a date not more than three days prior to the Depositor pursuant to Closing Date for the First Receivables Purchase Agreement, (ii) the transfer purposes of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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 Estatethis subsection.
(j) You The Collateral Agent shall have received evidence (with a copy for the Initial Purchasers) at the Closing Date:
(i) appropriately completed copies, which have been duly authorized for filing by the appropriate Person, of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies, which have been duly authorized for filing by the appropriate Person, of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens of any Person in any Collateral described in the Collateral Agreements previously granted by any Person, other than Permitted Liens; and
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably satisfactory near to you that, on or before the Closing Date, UCC-3 listing all effective financing statements have been which name the Company or will be submitted for filing any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any Collateral described 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 counselCollateral Agreements (other than such financing statements that evidence Permitted Liens).
(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 related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 more favorable outlook, and you shall have received a letter dated as 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 Class A Notes shall have been rated “BBB-(sf)”Date, the Class B Notes shall have been rated “BB-(sf)” representations and warranties contained in the Collateral Agreements will be true and correct in all respects. The Company and the Class C Notes shall have been rated “B-(sf)” by ▇▇▇▇▇ Bond Rating 91199526 Conn’s 2017-B: Note Purchase Agreement AgencyGuarantor will furnish the Initial Purchasers with such conformed copies of such opinions, Inc. (“Kroll”)certificates, and, letters and documents as the Initial Purchasers reasonably requests. CSFB may in its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the extent that Kroll 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 obligations of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookInitial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Issuer and Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. Holdings of their obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from Ernst & Young LLPa letter, independent certified public accountantsdated the date of this Agreement, the Report and letters with respect of Arthur Andersen LLP in a form satisfactory to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, ▇▇▇▇▇▇l ▇▇▇▇▇▇▇ers in each case in form and substance reasonably satisfactory to you and your counselall respects.
(b) There Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that 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) (A) any change, or any development or event involving a prospective change, in the financial condition, financial business, properties or otherwise, or in the earnings, business or results of operations of the Issuer, the Depositor, Conn Appliances, Conn’s, Inc. Company or any of their respective subsidiaries, thatits subsidiaries which, in the reasonable judgment of the Initial PurchasersCSFBC, is material and adverse and that makes it impracticable impractical or inadvisable to market proceed with completion of the Purchased Notes offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of the Company 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 the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the terms and New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the manner contemplated over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the Preliminary Offering Memorandumjudgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) You There shall have received an opinion exist at and as 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 no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form and substance to you and your counselat the Closing Date.
(d) ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor, Conn Appliances, the Receivables Trust, the Seller and the Issuer, The Initial Purchasers shall have delivered (i) received an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptionsopinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasersof Simpson, 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, (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 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, LLPThacher & Bartlett, counsel to the TrusteeIssuer, 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 Holdings 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 ▇▇▇▇▇▇▇▇, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Walter Stafford, Esq., Senior Vice President, Secr▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ al Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & Finger, P.A.Moore, counsel for the Initial Purchasers, such op▇▇▇▇▇ or opinions, dated the Closing Date, with respect to the Receivables Trust Trustee incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and special Delaware counsel sale of the Offered Securities by the Issuer to the DepositorInitial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Receivables TrustCompany shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date and reasonably satisfactory in form and substance to you and your counselDate, 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 Chief Executive Officer, Chairman of the Depositor, Conn Appliances Americas or any Vice President and a principal financial or accounting officer of the Seller, Company in which such officers officers, to the best of their knowledge after reasonable investigation, shall state that: (i) that the representations and warranties made by it the Issuer and Holdings with respect to the Company in the other Transaction Documents and this Agreement are true and correctcorrect and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of Arthur Anderson LLP which meets the requirements o▇ ▇▇▇▇e▇▇▇▇▇ (▇) of this Section, except that it has complied with all agreements and satisfied all conditions on its part the specified date referred to in such subsection will be performed or satisfied under such agreements on or before a date not more than three days prior to the Closing Date and (ii) since December 7, 2017 there has not occurred any material adverse change in or affecting for the condition, financial or otherwise, or in the earnings, business or operations purposes 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 Memorandumthis subsection.
(i) You The Issuer , Holdings and the Trustee shall have entered into the Indenture and you shall have received evidence reasonably satisfactory to you thatcounterparts, on or before the Closing Dateconformed as executed, 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) 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 Estatethereof.
(j) You The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received evidence reasonably satisfactory to you thatcounterparts, on or before the Closing Dateconformed as executed, 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 counselthereof.
(k) You The Issuer and Holdings shall have receivedentered into an escrow agreement with the Escrow Agent and, from each of on the DepositorClosing Date, Conn Appliances and will deposit 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 Escrowed Funds with the related entityEscrow Agent.
(l) You The Offered Securities shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP been designated PORTAL securities in accordance with respect the rules and regulations adopted by the NASD relating to trading in the Preliminary Offering Memorandum and the Offering Memorandum in form and substance reasonably satisfactory to the Initial PurchasersPORTAL market.
(m) The Class A Notes On or prior to the Closing Date, the Issuer shall have been rated “BBBsf”, provided to each of the Class B Notes shall have been rated “BBsf” Initial Purchasers and counsel to the Class C Notes shall have been rated “B-sf” by Fitch Ratings, Inc. Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (“Fitch”), and, to the extent that Fitch expresses an outlook with respect available, drafts of Transaction Agreements to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as be executed on the closing date of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings andMerger, if applicable, 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”later), and, including but not limited to legal opinions relating to the extent that Kroll expresses an outlook Transactions. CSFBC may waive compliance with respect any conditions to any such rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as the obligations of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookInitial Purchasers hereunder.
Appears in 1 contract
Sources: Purchase Agreement (Wirta Raymond E)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the Initial Purchasers to purchase and pay for the Purchased Offered Notes will be subject to the accuracy of the representations and warranties made on the part of the Issuer and ARI herein, to the accuracy of the statements of officers of the Issuer and ▇▇▇ made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, each of the Issuer and Conn’s, Inc. ▇▇▇ of their its obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreementprecedent on or prior to the Closing Date:
(a) You The Initial Purchasers shall have received from Ernst & Young LLPKPMG LLP a letter or letters, independent certified public accountants, dated as of the Report and letters with respect to date of the Preliminary Offering MemorandumMemorandum and as of the Applicable Time, in form and substance satisfactory to the Initial Purchasers and their counsel, stating in effect that they have performed certain specified procedures, all of which have been agreed to by the Initial Purchasers, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Preliminary Offering Memorandum and the ReportOffering Memorandum agrees with the corresponding information included on or derived from a certain computer-generated railroad car lease data file and related record layout, excluding any questions of legal interpretation.
(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 each case the condition (financial or other), business, properties or results of operations of the Issuer or ARI or ARL and their respective subsidiaries taken as one enterprise which, in the judgment of Initial Purchasers whose combined respective purchase obligations represent a majority of all such purchase obligations hereunder (a “Majority In Interest”), 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 change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a Majority In Interest 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; (iii) 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; (iv) any banking moratorium declared by U.S. Federal or New York authorities; (v) any major disruption of settlements of securities or clearance services in the United States; or (vi) 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 a Majority In Interest 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) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Issuer and (ii) such other law firms acceptable to the Initial Purchasers and their counsel, in form and substance reasonably satisfactory to you the Initial Purchasers or such counsel, to the effect that:
(i) Based on a good standing certificate from the Secretary of State of the State of Delaware the Issuer has been duly formed and your counselis a validly existing limited liability company in good standing under the laws of the State of Delaware, with power and authority to execute and deliver each Transaction Agreement to which it is a party and to perform its obligations thereunder;
(ii) (A) Based on a good standing certificate from the Secretary of State of the State of North Dakota, ARI has been duly formed and is an existing corporation in good standing under the laws of the State of North Dakota, with power and authority (as a corporation and otherwise) to execute and deliver each Transaction Agreement to which it is a party and to perform its obligations thereunder; and (B) based on a good standing certificate from the Secretary of State of the State of Delaware, each of ARL and Administrators has been duly formed and is an 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 execute and deliver each Transaction Agreement to which it is a party and to perform its obligations thereunder;
(iii) The Indenture and the other Transaction Agreements have been duly authorized, executed and delivered by the Issuer, ARI, ARL or Administrators party thereto, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered by the Issuer; and each Transaction Agreement constitutes a valid and legally binding agreement under the laws of the State of New York, enforceable thereunder in accordance with its terms against the Issuer, ARI, ARL or Administrators, as applicable, 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 Contribution and Sale Agreement, in the event that the conveyances contemplated thereunder are interpreted to constitute the mere grant of a security interest to secure a borrowing by the Issuer from ARI rather than an absolute sale and assignment of ownership by ▇▇▇ to the Issuer, creates a valid security interest upon all of the Railcars, Leases and related assets and property conveyed by ARI thereunder on the Closing Date, and the Issuer (or the Trustee as assignee of the Issuer) will have, upon the filing of certain UCC financing statements, a perfected security interest in such assets and property to the extent that a security interest may be perfected therein by filing of UCC financing statements;
(v) The Indenture creates a valid security interest in all of the Collateral (as defined in the Indenture) as granted under the Indenture on the Closing Date, and the Trustee for the benefit 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 such Collateral to the extent that a security interest may be perfected therein by filing of UCC financing statements;
(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” as defined in the Investment Company Act, without reliance on the exemptions provided under Sections 3(c)(1) or 3(c)(7) of the Investment Company Act.
(bvii) There shall not have occurred any changeNo consent, approval, authorization or order of, or filing with, any development involving a prospective changegovernmental 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 Agreements and except such as may be required under state securities laws;
(viii) To such counsel’s knowledge, after inquiry to officers of ▇▇▇ and ▇▇▇ and after review of customary litigation filing and judgment lien records in the conditionrelevant jurisdiction of organization of ARI, financial ARL and Administrators, there are no pending actions, suits or otherwise, proceedings against or in the earnings, business or operations of affecting the Issuer, the DepositorARI, Conn AppliancesARL or Administrators, Conn’s, Inc. or any of their respective subsidiaries, or any of their respective properties that, in if determined adversely to the reasonable judgment Issuer, ARI, ARL or Administrators or any of their respective subsidiaries, would impair materially its ability to perform its obligations under any of the Initial PurchasersTransaction Agreements; 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, this Agreement and the other Transaction Agreements to which the Issuer, ARI, ARL or Administrators is material a party, and adverse the issuance and that makes it impracticable to market sale of the Purchased Offered Notes on and compliance with the terms and provisions thereof will not result in a breach or violation of any United States federal or State of New York law or regulation, or result in a breach or violation of the terms and provisions of, or constitute a default under, any order of any United States federal or State of New York court, agency or other governmental body or any material agreement (as identified by an officer of ARI or ARL and provided by ARI or ARL to the opining counsel for review) by which the Issuer, ARI, ARL or Administrators or any of their respective subsidiaries is bound or to which any of the properties of the Issuer, ARI, ARL or Administrators or any of their respective subsidiaries is subject, or the organizational or formation documents of the Issuer, ARI, ARL or Administrators;
(x) Such counsel have no reason to believe that the Final Offering Document, or any amendment or supplement thereto, as of its date 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; or the Preliminary Offering Memorandum, as of January 14, 2015, contain any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; provided, however, that such counsel need not express any belief with respect to the financial statements or other financial, statistical, numerical or accounting data contained in or omitted from the Final Offering Document.
(xi) This Agreement has been duly authorized, executed and delivered by each of the Issuer and ▇▇▇;
(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 the Indenture under the Trust Indenture Act;
(xiii) The statements in the Preliminary Offering Memorandum.Memorandum and the Offering Memorandum under the captions “The Issuer”, “Description of the Management Agreement”, “Description of the Contribution and Sale Agreement”, “Description of the Lease Administration Agreement”, “Description of the Administrative Services Agreement” and “Description of the Offered Notes and the Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Operative Agreements, constitute a fair summary of the provisions purported to be summarized;
(cxiv) You shall have received an opinion of in-house counsel The statements contained in the Preliminary Offering Memorandum and the Offering Memorandum under the captions “Material U.S. Federal Income Tax Consequences” and “ERISA Considerations”, to the Depositorextent that they constitute matters of federal law or legal conclusions with respect thereto, Conn Applianceswhile not purporting to discuss all possible consequences of investment in the Offered Notes, are correct in all material respects with respect to those consequences or matters that are discussed therein;
(xv) In the Receivables Trust and event of a United States federal bankruptcy case involving ARI as debtor under the Seller addressed to youBankruptcy Code, a court properly presented with the Trustee and facts would hold that the Receivables Trustee, dated transfer on the Closing Date of the Railcars and reasonably satisfactory in form Leases from ARI to the Issuer and substance as contemplated by the Transaction Agreements prior to you such event would constitute sales, and your counselnot secured loans, and that, accordingly, the Railcars and Leases so transferred and the proceeds thereof would not constitute “property of the estate” of the seller for purposes of Section 541 of the Bankruptcy Code and would not as a result of such proceeding be subject to the automatic stay of Section 362(a) of the Bankruptcy Code;
(xvi) In the event of a United States federal bankruptcy case involving ARI as debtor under the Bankruptcy Code, a court properly presented with the facts would not grant an order substantively consolidating the assets and liabilities of the Issuer with those of ARI; and
(xvii) The Offered Notes will constitute indebtedness for United States federal income tax purposes.
(d) The Initial Purchasers shall have received the opinion or opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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 exceptionsTrustee, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to .
(Ae) general corporate matters, The Initial Purchasers shall have received the validity agreed execution version (in draft form) of the Notesopinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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, (B) certain United States federal income tax matters contained in the Preliminary Offering Memorandum and the Offering Memorandum, (C) certain matters relating special STB counsel 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, dated the Depositor Closing Date and with such opinion to be delivered in executed form on such Closing Date or the Receivables Trust and require next following date, but reflecting the substantive consolidation lien status described in such opinion as of the assets and liabilities of the IssuerClosing Date, 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 counselPurchasers.
(f) You The Initial Purchasers shall have received an the agreed execution version (in draft form) of the opinion addressed to you and the Depositor of ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Back-Up ServicerIssuer, dated and with such opinion to be delivered in executed form on such Closing Date or the next following date, but reflecting the lien status described in such opinion as of the Closing Date and reasonably satisfactory Date, in form and substance reasonably satisfactory to you and your counselthe Initial Purchasers.
(g) You The Initial Purchasers shall have received an a copy of each opinion addressed to you and the Depositor of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel provided to the Receivables Trust Trustee Hired NRSRO in connection with its rating of the Offered Notes, each of which shall state therein that the Initial Purchasers may rely thereon, in form and special Delaware counsel substance reasonably satisfactory to the Depositor, the Issuer and the Receivables TrustInitial Purchasers.
(1) The Initial Purchasers shall have received a certificate, dated the Closing Date and reasonably satisfactory in form and substance to you and your counselDate, including with respect to certain matters 91199526 Conn’s 2017-B: Note Purchase Agreement under Delaware law with respect to of the Depositor, President or any Vice President or a principal financial or accounting officer of each of the Issuer and the Receivables Trust ARI (it being understood that a certificate of ARI on its own behalf and the authority in its capacity as sole equity member 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 be sufficient for purposes of the Depositor, Conn Appliances Issuer’s and the Seller, ARI’s compliance with this requirement) in which such officers officer shall state that: , to the best of such officer’s knowledge, after reasonable investigation, (i) the representations and warranties made by it of the Issuer and ARI, as the case may be, in the other Transaction Documents and this Agreement are true and correct, that it each of the Issuer and ▇▇▇ has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on hereunder at or before prior to the Closing Date and Date, (ii) nothing has come to such officer’s attention that would lead such officer to conclude that the General Disclosure Package included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, under the circumstances in which they were made, not misleading and (iii) since December 7, 2017 the date of the Offering Memorandum there has shall not occurred have been any material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business or operations membership interests of the Issuer.
(2) The Initial Purchasers shall have received a certificate, dated the DepositorClosing Date, Conn Appliancesof the President or any Vice President or a principal financial or accounting officer of ARL in which such officer shall state that, to the best of such officer’s knowledge, after reasonable investigation, (i) ARL has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the SellerClosing Date, except as disclosed to you in writing prior and that, subsequent to the date of the Preliminary Offering Memorandum.
(i) You shall have received evidence reasonably satisfactory to you thatmost recent financial statements of each of ARL and its consolidated subsidiaries, on there has been no material adverse change, nor any development or before the Closing Dateevent involving a prospective material adverse change, 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 Agreementcondition (financial or other), business, properties or results of operations of each of ARL and its subsidiaries, taken as a whole, (ii) nothing has come to such officer’s attention that would lead such officer to conclude that the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant by the Issuer to the Trustee under the Indenture General Disclosure Package included any untrue statement of a security interest in the interest of the Issuer in the Receivables Trust Estate.
(j) You shall have received evidence reasonably satisfactory material fact or omitted to you that, on state a material fact required to be stated therein 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 related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.ne
Appears in 1 contract
Sources: Note Purchase Agreement (American Railcar Industries, Inc.)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Issuer and each 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 each Guarantor made pursuant heretoto the provisions hereof, to the performance by the Depositor, Conn Appliances, the Issuer and Conn’s, Inc. each Guarantor of their obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Initial Purchasers shall have received from Ernst & Young a letter, dated the date of this Agreement, of KPMG Peat Marwick LLP, independent certified public accountantsauditors for the Issuer and FSC Semiconductor, substantially in the Report form of Exhibit A hereto and letters with respect acceptable to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case in form and substance reasonably satisfactory to you and your counselInitial Purchasers.
(b) There 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 (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 financial condition, financial business, properties or otherwise, or in the earnings, business or results of operations of the Issuer, FSC Semiconductor and the Depositor, Conn Appliances, Conn’s, Inc. Subsidiaries taken as a whole or any of their respective subsidiaries, thatthe PD Business which, in the reasonable judgment of the Initial PurchasersCSFBC, is material and adverse and that makes it impracticable impractical or inadvisable to market proceed with the Purchased Notes on completion of the terms offering or the sale of and payment for the Offered Securities; (iii) any downgrading in the manner contemplated in the Preliminary Offering Memorandum.
(c) You shall have received an opinion rating 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 any debt securities of the Issuer and by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the TrusteeSecurities Act), respectively, in the Receivables Trust Estate, the security interest or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Receivables Trust Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) any suspension or limitation of trading in securities generally on the Trust EstateNew York Stock Exchange or any setting of minimum prices for trading on such exchange, (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 or any suspension of trading of any securities 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, Issuer 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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, exchange or in the earningsover-the-counter market; (v) any banking moratorium declared by Federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States or Korea is involved, business or operations any declaration 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 transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant war 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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 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 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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.Congress or
Appears in 1 contract
Sources: Purchase Agreement (Fairchild Semiconductor International Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Purchased Notes on the Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Issuers and each of the Guarantors herein, in the case of representations and warranties which are qualified as to materiality, and to the accuracy in all material respects of the representations and warranties on the part of the Issuers and each of the Guarantors herein, in the case of representations and warranties that are not so qualified, to the accuracy in all material respects of the statements of each of the officers of the Issuers and each of the Guarantors made pursuant heretoto the provisions hereof, to the performance in all material respects by the Depositor, Conn Appliances, Issuers and each of the Issuer and Conn’s, Inc. Guarantors of their respective obligations hereunder, hereunder and to the following additional conditions precedent: 91199526 Conn’s 2017-B: Note Purchase Agreement:
(a) You The Representative shall have received a letter or letters from Ernst & Young LLP, independent certified public accountants, PricewaterhouseCoopers LLP at the Report and letters with respect to the Preliminary Offering Memorandum, the Offering Memorandum and the Report, in each case date hereof in form and substance reasonably satisfactory to you the Representative, containing statements and your counselinformation of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Offering Memorandum, and a letter or letters from PricewaterhouseCoopers LLP to be delivered at the Closing Date reaffirming the statements made in each such letter or letters, except that the inquiries and procedures specified therein shall have been carried out to a specified date not more than three business days prior to the Closing Date.
(b) There Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) except as set forth in the General Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto on or after the date of this Agreement) any change, or any development or event involving a prospective change, in the financial condition, financial business, properties, management, prospects or otherwise, or in the earnings, business or results of operations of the IssuerHoldings, the DepositorCompany and its subsidiaries taken as one enterprise, Conn Appliances, Conn’s, Inc. or any of their respective subsidiaries, thatwhich, in the reasonable judgment of the Initial Purchasers, Representative 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 Notes; (ii) any downgrading in the rating of any debt securities of the Issuers by any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuers (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuers have 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 Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the 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 the Nasdaq Stock Market, or any setting of minimum prices for trading on such exchanges, or any suspension of trading of any securities issued or guaranteed by Holdings or the Issuers on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any change in financial markets or any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative the effect of any such attack, outbreak, escalation, act, change, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Notes.
(c) No event or condition of a type described in Section 1(r) hereof shall have occurred or shall exist, which event or condition is not described in the General Disclosure Package (excluding any amendment or supplement thereto) and the Final Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representative makes it impracticable or inadvisable to market proceed with the Purchased offer, sale or delivery of the Notes on the Closing Date, on the terms and in the manner contemplated in by this Agreement, the Preliminary General Disclosure Package and the Final Offering Memorandum.
(cd) You The Representative shall have received an opinion, a tax opinion of in-house counsel to the Depositor, Conn Appliances, the Receivables Trust and the Seller addressed to you, the Trustee and the Receivables Trusteea negative assurance letter, dated the Closing Date and reasonably satisfactory addressed to the Initial Purchasers, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Issuers and the Guarantors, substantially in the forms of Exhibit A-1 and Exhibit A-2 attached hereto.
(e) The Representative shall have received an opinion including a negative assurance letter, dated the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Corporate Secretary of the Issuers, substantially in the form of Exhibit B attached hereto.
(f) The Representative shall have received opinions, dated the Closing Date, of local counsel in Florida and Michigan, in form and substance reasonably satisfactory to you and your counsel.the Representative, to the effect set forth in Exhibit C.
(dg) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to for the DepositorInitial Purchasers, Conn Appliances, the Receivables Trust, the Seller and the Issuer, shall have delivered (i) an such opinion or opinions, subject to customary qualifications, assumptions, limitations opinions and exceptionsnegative assurance letter, 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, (B) certain United States federal income tax matters contained in the Preliminary Final Offering Memorandum and the Offering MemorandumGeneral Disclosure Package, (C) certain matters relating to the treatment exemption from registration for the offer and sale of the transfer of Receivables Notes 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 Issuers to the Initial Purchasers dated and the Closing Date.
(e) You resales by the Initial Purchasers as contemplated hereby and other related matters as the Representative may reasonably require, and the Issuers and the Guarantors shall have received an opinion addressed furnished to you and such counsel such documents as they request for the Depositor purpose of K&L Gates, LLP, counsel enabling them 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 petitionpass upon such matters.
(h) You The Issuers and the Guarantors shall deliver to the Representative, among other documents and certificates as the Representative shall reasonably request including certificates of good standing from the jurisdiction of incorporation or organization of each such entity, and certificates of good standing in such jurisdictions as the Representative reasonably requests, Secretary’s Certificates, dated the Closing Date, reasonably satisfactory to the Representative which shall include the following documents with respect to the Issuers and each of the Guarantors: (i) certificates of incorporation or organization, (ii) by-laws or comparable organizational documents, (iii) resolutions and minutes of the meetings of the Board of Directors of each entity and certain committees thereto, or comparable documents, in each case, relating to the Transaction Documents, (iv) incumbency certificates listing persons authorized to execute each of the Transaction Documents, and (v) in the case of the Issuers, true, correct and complete copies of the executed Global Securities.
(i) The Representative shall have received certificates a certificate or certificates, dated the Closing Date Date, of authorized officers an executive officer of the DepositorIssuers and of each Guarantor, Conn Appliances and with specific knowledge about the SellerIssuers’ or such Guarantor’s financial matters, satisfactory to the Representative, in which such officers officer, to the best of such officer’s knowledge after reasonable investigation, shall state that: (ithat the representation set forth in Section 1(a) hereof is true and correct, that the respective other representations and warranties made by it of the Issuers and the Guarantors in the other Transaction Documents and this Agreement are true and correct, in the case of representations and warranties which are qualified as to materiality, and true and correct in all material respects, in the case of representations and warranties that it are not so qualified, that each of the Issuers and the Guarantors has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements on hereunder at or before prior to the Closing Date Date, and (ii) since December 7that, 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 subsequent to the date of the Preliminary most recent financial statements included or incorporated by reference in the General Disclosure Package (exclusive of any amendment or supplement thereto on or after the date of this Agreement) there has been no change, nor any development or event involving a prospective change, that would constitute a material adverse change in the financial condition, business, properties or results of operations of Holdings, the Company and its subsidiaries, taken as a whole except as set forth in the General Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto on or after the date of this Agreement).
(j) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two officers of the Company who are responsible for financial and accounting matters, substantially in the form of Exhibit D hereto, with respect to certain financial information contained in the General Disclosure Package and the Final Offering Memorandum.
(ik) You The Indenture shall have been duly executed and delivered by a duly authorized officer of each of the Issuers, the Guarantors and the Trustee, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Issuers and duly authenticated by the Trustee.
(l) The Notes shall be eligible for clearance and settlement through DTC.
(m) The Representative shall have received evidence reasonably satisfactory to you it that, on or before substantially simultaneously with the Closing Date, UCC-1 financing statements will be submitted for filing in all applicable governmental offices reflecting (i) the transfer purchase of the interest of the Seller in the Receivables to the Depositor pursuant to the First Receivables Purchase Agreement, (ii) the transfer of the interest of the Depositor in the Receivables to the Receivables Trust pursuant to the Second Receivables Purchase Agreement, (iii) the transfer of the interest of the Depositor in the Receivables Trust Certificate to the Issuer pursuant to the Purchase and Sale Agreement and (iv) the grant Notes 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) certificates of good standing, (iii) applicable resolutions and (iv) incumbency certifications for the related entity.
(l) You shall have received one or more negative assurance letters from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the Preliminary Offering 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” Company will apply the net proceeds thereof as described in the General Disclosure Package and the Class C Notes shall have been rated Final Offering Memorandum under the heading “B-sf” by Fitch RatingsUse of proceeds”. The Issuers will furnish the Representative with such conformed copies of such opinions, Inc. (“Fitch”)certificates, and, letters and documents as the Representative reasonably requests. The Representative may in its sole discretion waive compliance with any conditions 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 obligations of the Closing Date from Fitch, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlookInitial Purchasers hereunder.
(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 rating, such rating carries a “stable” or more favorable outlook, and you shall have received a letter dated as of the Closing Date from Kroll, or other evidence satisfactory to you, confirming that the Purchased Notes have such ratings and, if applicable, outlook.
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