Conditions of the Obligations of the Initial Purchasers. The obligation of the several Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on 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 to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder in all material respects and to the following additional conditions precedent: (a) The Representatives, on behalf of the Initial Purchasers, shall have received a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP, in form and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth in the General Disclosure Package. (b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (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 Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, 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 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 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 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 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 reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisse, 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. (d) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, counsel 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 received an opinion, 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 a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, 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 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 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, 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. (k) The Initial Purchasers shall have received a letter, dated the Closing Date, of KPMG 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 business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular. (l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture. (m) 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. (n) The 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 complied with. (o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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, 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 the obligations of the Initial 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 Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing DateIssuers herein, to the accuracy accuracy, in all material respects, of the statements of officers of the Issuer and Guarantors Issuers made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder performance, in all material respects respects, by the Issuers of its obligations hereunder and to the following additional conditions precedent:
(a) The Representatives, on behalf of the Initial Purchasers, Purchasers shall have received a customary “comfort letter”, dated the date of this Agreement, of KPMG LLPErnst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") and to the effect that:
(i) in their opinion the financial statements examined by them and included in the Offering Documents comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) on the basis of 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) at a specified date not more than three business days prior to the date of this Agreement, 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 such date, there was any decrease in consolidated net current assets or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Documents; or
(B) for the period from the closing date of the latest income statement included in the Offering Documents to a specified date not more than three business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period of the previous year, in form consolidated net sales, net operating income consolidated, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (A) and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information (B) above for changes, increases or decreases which are described in such letter;
(iii) in their opinion, with respect to Holdings the unaudited pro forma condensed consolidated balance sheet as of July 2, 1999, and the unaudited pro forma condensed consolidated statements of income for the year ended July 2, 1999 included in the Offering Documents, (A) the assumptions of each of the Issuer's management provide a reasonable basis for presenting the significant effects directly attributable to the transactions described in the introductory information to these unaudited pro forma condensed consolidated financial statements, (B) the related pro forma adjustments give appropriate effect to those assumptions and (C) the pro forma column reflects the proper application of those adjustments to the historical financial statement amounts in these pro forma condensed consolidated financial statements; and
(iv) on the basis of a reading of the pro forma condensed consolidated financial statements referred to in 6(a)(iii) above and inquiries of officials of the Issuers who have responsibility for financial and accounting matters about whether these unaudited pro forma condensed consolidated financial statements comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X, nothing came to their attention that caused them to believe that these unaudited pro forma condensed consolidated financial statements included in the Offering Documents do not comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X,
(v) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Documents to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Issuers and its subsidiaries set forth subject to the internal controls of the Issuers' 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 the General Disclosure Packagesuch letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (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 Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, 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 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 that would, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit SuisseCSFBC, 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 business, assets, operations, properties, financial condition, liabilities or prospects of the Issuers and their subsidiaries taken as a whole 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; (ivB) any material downgrading in the rating of any debt securities of either Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities of either Issuer (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 material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of either Issuer on any exchange or in the over-the-counter market; (vD) any banking moratorium declared by U.S. Federal or New York authorities; or (viE) any major disruption of settlements of securities, payment or clearance services in the United States; or (vii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit SuisseCSFBC, 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) Concurrently with or prior to the issue and sale of the Offered Securities by the Issuers, the Transactions shall be consummated on terms that conform in all material respects to the description thereof in the Offering Documents and the Initial Purchasers shall have received true and correct copies of all documents pertaining thereto and evidence reasonably satisfactory to the Initial Purchasers of the consummation thereof.
(d) Concurrently with or prior to the issuance and sale of the Offered Securities by the Issuers, the Company and Intersil Holding shall have entered into the Credit Agreement and the initial borrowings thereunder shall have occurred. The Initial Purchasers shall have received opinions, dated conformed counterparts thereof and all other documents and agreements entered into and received thereunder in connection with the closing of the Credit Agreement. There shall exist at and as of the Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable Date (after giving effect to the Initial Purchaserstransactions contemplated by this Agreement and the Transactions) no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the Credit Agreement or any other Transaction Document.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date from L▇▇▇▇▇▇ Date, of Dechert Price & 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 Issuers and the form of Exhibit C hereto and reasonably acceptable Guarantors, 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 a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, 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.effect that:
(i) The Initial Purchasers shall have received from Cravatheach of the Issuers has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, Swaine & M▇▇▇▇ LLPwith corporate power and corporate authority to own its properties and conduct its business as described in the Offering Circular; and each of the Issuers is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion;
(ii) each of the Company's domestic subsidiaries 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, counsel for with corporate or limited liability company power and authority to own its properties and conduct its business as described in the Initial PurchasersOffering Circular; and each is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion;
(iii) all of the issued and outstanding capital stock of the Issuers and the Subsidiary Guarantors that are corporations has been duly authorized and validly issued and is fully paid and nonassessable and conforms in all material respects to the description thereof in the Offering Circular;
(iv) insofar as is known to such counsel, to the extent the Offering Circular contains summaries of statutes, legal proceedings or agreements to which any of Intersil Holding, the Company or any of its subsidiaries is a party (or provisions thereof) referred to therein, such opinion or opinionsstatements are true and correct in all material respects;
(v) the Issuers and the Subsidiary Guarantors have duly authorized the execution, dated the Closing Date, with respect to the incorporation of the Issuer, the validity delivery and performance of the Offered Securities, the Final Offering Circular Operative Documents and the General Disclosure Packageconsummation of the transactions contemplated thereby;
(vi) the Operative Documents constitute valid and legally binding obligations of the Issuers and the Subsidiary Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies and except that any rights to indemnity and contribution may be limited or prohibited by Federal and state securities laws and public policy considerations; the Offered Securities have been duly authorized and executed by the Issuers and conform in all material respects to the description thereof in the Offering Circular;
(vii) each of the Guaranties has been duly authorized and executed by the respective Guarantor, and, assuming the Notes have been duly authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the exemption from registration Offered Notes constitute valid and legally binding obligations of the Company and each of the Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies;
(viii) the Warrants delivered on the Closing Date (as defined herein) are convertible into shares of Class A common stock of Intersil Holding in accordance with the term of the Warrant Agreement; the shares of Class A common stock of Intersil Holding initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon such exercise and, when issued upon such exercise, will be validly issued, fully paid and nonassessable; the outstanding shares of Class A common stock of Intersil Holding have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Offering Circular; and the stockholders of Intersil Holding have no preemptive rights with respect to the Warrants or the shares of Class A common stock, except as disclosed in the Offering Circular;
(ix) assuming the accuracy of the representation and warranty of the Issuers and the Subsidiary Guarantors contained in Section 2(y) of this Agreement and the accuracy of the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the performance by any of the Issuers or Subsidiary Guarantors of its obligations under the Operative Documents or in connection with the issuance and sale of the Offered Notes Securities by the Issuers and the issuance of the Guaranties by the Guarantors, except such as have been obtained or made or as may be required under the Securities Act or the Exchange Act and the rules and regulations of the Commission thereunder with respect to the Registration Rights Agreement and the transactions contemplated thereunder and such as may be required by state securities or blue sky laws in connection with the offer and sale of the Offered Securities;
(x) the execution, delivery and performance, of the Operative Documents and the Transaction Documents by Sterling, Intersil Holding, the Company and the Subsidiary Guarantors (to the extent a party thereto) and the issuance and sale of the Offered Securities by the Issuer Issuers and compliance with the terms and provisions of the foregoing will not (A) result in a breach or violation of any of the terms and provisions of (1) any material New York or Federal statute, rule or regulation applicable to any of Intersil Holding, the Initial Purchasers Company or any Subsidiary Guarantor or (2) any order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over any of Intersil Holding, the Company, any Subsidiary Guarantor or any of their properties 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 which order is known to such counsel counsel, or, (B) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Transaction Documents listed in such documents as they request for opinion, or (C) result in a violation of the purpose charter or by-laws of enabling them to pass upon such matters.Intersil Holding, the Company or any Subsidiary Guarantor;
(jxi) The Initial Purchasers shall have received a certificateother than those already obtained or applied for, dated no consent, approval, authorization or order of, or filing with, any New York or Federal government agency or body or any New York or Federal court is required in connection with the Closing Date, consummation 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 transactions contemplated by the General Disclosure Package Transaction Documents by ▇▇▇▇▇▇▇▇, the Issuers or as described any of the Subsidiary Guarantors except for such consents, approvals, authorizations, orders or filings the failure of which to obtain or make would not result in such certificate.a Material Adverse Effect;
(kxii) The Initial Purchasers shall have received a lettereach of the Transaction Documents has been duly authorized by each of Sterling, dated the Closing Date, of KPMG which meets Issuers and the requirements of subsection Subsidiary Guarantors (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 extent a party thereto) and will, when duly executed, constitute a valid and legally binding obligation of each of Sterling, the purposes Issuers and the Subsidiary Guarantors (to the extent a party thereto) and is enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally, general equitable principles and the discretion of this subsection and the courts in granting equitable remedies;
(xiii) except it shall refer as disclosed in the Offering Documents, insofar as is known to financial information with respect to Holdings and such counsel, there are no actions, suits or proceedings threatened or pending against Intersil Holding, the Company or any of its subsidiaries in or any of their respective properties that if determined adversely to Intersil Holding, the Final Offering Circular.Company or any such subsidiary would be reasonably likely to have a Material Adverse Effect;
(lxiv) The Issuer neither of the Issuers nor any of the Subsidiary Guarantors is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or a closed-end investment company required to be registered, but not registered, thereunder; and neither of the Issuers nor any of the Subsidiary Guarantors shall have executed is or, after giving effect to the offering and delivered sale of the Registration Rights Agreement Offered Securities and the Indenture.
(m) 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 thereof as they may reasonably request.
(n) The Offered Securities shall be eligible for trading in PORTAL upon issuance. All agreements set forth described 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.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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, 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 the obligations of the Initial Purchasers hereunder.Offering Documents
Appears in 1 contract
Sources: Purchase Agreement (Intersil Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Securities Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing DateTILC, to the accuracy of the statements of officers of the Issuer and Guarantors TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and the Guarantors TILC of their its obligations hereunder in all material respects and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The RepresentativesOn the Closing Date, on behalf of the Initial Purchasers, Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP, in form and substance third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth a letter or letters, in the General Disclosure Packageform heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings the Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial PurchasersPurchasers 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 SecuritiesNotes; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries 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 the Issuer or any of its subsidiaries 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 any of its subsidiaries 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 reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered SecuritiesNotes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vivii) any major disruption of settlements of securities, payment securities or clearance services in the United States; or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor 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 SecuritiesNotes.
(dc) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W(i) ▇▇▇▇▇▇ & GPrice 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) 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 “▇▇▇▇▇▇▇ LLPRule”;
(vi) No consent, counsel 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, in substantially the form attached hereto as Exhibit A and reasonably acceptable TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Initial Purchasers.Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(eviii) The Initial Purchasers shall have received an opinionexecution, dated delivery and performance of the Closing Date from L▇▇▇▇▇▇ & G▇▇▇ ▇.▇.Indenture, Missouri counsel for the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance of the Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the form terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of Exhibit B hereto 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 reasonably acceptable the Issuer has full power and authority to authorize, issue and sell the Initial Purchasers.Offered Notes as contemplated by this Agreement;
(fix) The Initial Purchasers shall Such counsel have received an opinionno reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, dated or any amendment or supplement thereto, as of the Closing Date from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer in the form Applicable Time and as 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 a certificate, dated the Closing Date, signed by contained any untrue statement of a material fact or omitted to state any material fact necessary to make the chief executive officer statements therein not misleading; and such counsel have no reason to believe that the chief financial officer of information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the IssuerPreliminary Offering Circular, 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 will comprise the General Disclosure Package, as of the exemption from registration for Applicable Time and as of the offer 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;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xi) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities Notes by the Issuer to the Initial Purchasers and pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers as in the manner contemplated hereby and other related matters as Initial Purchasers may requireby this Agreement, and to register the Issuer shall have furnished Offered Notes under the Securities Act or to such counsel such documents as they request for qualify an indenture in respect thereof under the purpose of enabling them to pass upon such matters.Trust Indenture Act;
(jxii) 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 PackagePreliminary Offering Circular and the Offering Circular under the captions “The Issuer”, there has been no material adverse change“The Railcars”, nor any development or event involving a prospective material adverse change“The Lessees”, in the condition (financial or other)“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Issuer Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and its subsidiaries taken as a whole except as set forth in or contemplated by Contribution Agreement”, “Description of the General Disclosure Package or as described in such certificate.
(k) The Initial Purchasers shall have received a letterInsurance Agreement”, dated “Description of Hedge Agreements”, “Description of the Closing Date, Liquidity Facility Documents” and “Description of KPMG 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 business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement Offered Notes and the Indenture.
(m) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds ”, insofar as they purport to summarize certain terms of the Offered Securities in accordance with this Agreement Notes and such other information as they may reasonably request.
(n) The Offered Securities shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the blanket representation letter applicable Transaction Documents, constitute a fair summary of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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 provisions purported 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, 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 the obligations of the Initial Purchasers hereunder.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 Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer and Company herein at the Guarantors herein as of the date hereof and as of Execution Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of Company officers of the Issuer and Guarantors made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors Company of their its obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The Representatives, on behalf of the Initial Purchasers, shall have received a customary “comfort letter”, dated On or prior to the date of this Agreement, the Representatives shall have received a letter, dated the date of KPMG delivery thereof, of Ernst & Young, LLP, in form confirming that they are independent public accountants within the meaning of the Act and substance reasonably satisfactory the applicable published Rules and Regulations thereunder and stating to the Initial Purchasers concerning certain 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 respect the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to Holdings such unaudited financial statements and its subsidiaries 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 General Disclosure Packageunaudited 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 period 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 such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Offering Memorandum shall be deemed included in the Offering Memorandum for purposes of this subsection.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this AgreementExecution Time, 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 Holdings the Company 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 makes it impractical or inadvisable to proceed with completion of the public 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 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 Issuer or any of its subsidiaries 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 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 secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (viv) any banking moratorium declared by U.S. Federal or New York authorities; (vi) authorities and any major disruption of settlements of securities, payment securities or clearance services in the United States; or (viiv) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers Purchasers, including Credit Suissethe 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.
(dc) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers Representatives shall have received an opinion, dated the Closing Date from LDate, of Coudert Brothers LLP, counsel for the Company, to the effect 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 corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum;
(ii) Each of ▇▇▇▇▇▇ & 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▇▇▇. 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, 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 Company or a Material Subsidiary is a party or by which the Company is bound or to which any of the properties of the Company or any of its Material Subsidiaries is subject, or the charter 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 contemplated by this Agreement;
(vii) ▇▇▇▇▇▇▇▇▇▇ 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. is the registered owner of the trademark "Scholastic"; to the best knowledge of such counsel, Texas counsel for neither the Issuer 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 form of Exhibit D hereto aggregate, have a Material Adverse Effect on the business conducted or proposed to be conducted by the Company and reasonably acceptable to its Material Domestic Subsidiaries as described in the Initial Purchasers.Offering Memorandum;
(hviii) The Initial Purchasers 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 have received a certificate, dated state in such opinion that during the Closing Date, signed by the chief executive officer and the chief financial officer course of the Issuer, certifying all information for the years 2003 and 2004 in Item 6. Selected Financial Data preparation of the annual report on Form 10-K for Offering Memorandum, they reviewed the fiscal year ended 2007 for Holdings.
(i) The Initial Purchasers shall have received from CravathOffering Memorandum, Swaine & M▇▇▇▇ LLPparticipated in conferences with representatives of the Company, its accountants and with representatives of and counsel for the Initial Purchasers, such opinion or opinionsat which the contents of the Offering Memorandum and related matters were discussed, dated and advised the Closing Date, with respect Company as to the incorporation requirements of the Issuer, the validity of the Offered Securities, the Final Offering Circular Act and the General Disclosure Package, the exemption from registration for the offer applicable published rules 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 regulations thereunder. 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, 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 between the date of the most recent financial statements Offering Memorandum and the time of delivery of their letter, they have participated 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 further conferences with representatives of the Issuer and Company, its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(k) The Initial Purchasers shall have received a letter, dated the Closing Date, of KPMG 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 business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(m) 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.
(n) The 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 complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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, accountants 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, 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 representatives of the Initial Purchasers compliance with (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 conditions responsibility for the accuracy, completeness or fairness of any of the statements made in 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 obligations of applicable law and the experience such counsel has gained through such counsel's practice in this field, they advise the Initial Purchasers hereunderthat nothing which has come to the 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 Delaware General Corporation Law and the federal laws of the United States.
Appears in 1 contract
Sources: Purchase Agreement (Scholastic Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered 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 Issuer and the Guarantors Company herein (as of the date hereof and as of the though made on such Closing Date), to the accuracy of the statements of Company officers of the Issuer and Guarantors made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors Company of their its obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The RepresentativesRepresentatives shall have received a letter, on behalf of addressed to the Initial Purchasers, shall have received a customary “comfort letter”, dated the date of this Agreementhereof, of KPMG LLP, in form PricewaterhouseCoopers LLP confirming that they are an independent registered public accounting firm within the meaning of the Act and substance reasonably satisfactory the applicable published Rules and Regulations thereunder and stating to the Initial Purchasers concerning certain effect that:
(i) in their opinion the financial information statements incorporated by reference in the Offering Memorandum comply as to form in all material respects with respect to Holdings the applicable sections of Regulation S-X;
(ii) they have read the minutes of the 2010 meetings of the stockholders, the Board of Directors, Nominating and Corporate Governance Committee, Audit Committee, and Special Committee of the Board of Directors of the Company and its subsidiaries as set forth in the General Disclosure Packageminute 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 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 carrying amount of long-term debt increased by $5,436,000 due to the accretion of debt discount.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (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 Holdings the Company 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 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 Issuer or any of its subsidiaries 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 Issuer or any of its subsidiaries 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 Issuer or any of its subsidiaries 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 reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suissethe 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 secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum 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; (vivii) any major disruption of settlements of securities, payment securities or clearance services in the United States; States or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United StatesStates or the Philippines, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suissethe 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.
(dc) The Initial Purchasers Representatives shall have received opinionsan opinion, dated the such Closing Date, of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ Day, counsel for the Company, as to the matters described in Annex B.
(d) The Representatives shall have received (i) an opinion of Mourant du Feu & GJeune, Cayman Islands counsel for the Company, substantially in the form attached as Annex C and (ii) an opinion of ▇▇▇▇▇▇▇ LLPBoss ▇▇▇▇▇ ▇▇, Swiss counsel for the IssuerCompany, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.matters described in Annex D.
(e) The Initial Purchasers Representatives shall have received an opinionfrom Skadden, dated the Closing Date from L▇▇▇▇▇▇ & G▇▇▇ ▇.▇.Arps, 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 opinionSlate, 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 a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, 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 such Closing Date, with respect to the incorporation of the IssuerCompany, the validity of the Offered SecuritiesSecurities delivered on such Closing Date, the Final Offering Circular 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 Initial Purchasers the Representatives may require, and the Issuer Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(jf) The Initial Purchasers Representatives shall have received a certificate, dated the such Closing Date, of the President Chief Executive Officer or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor Company 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 that: the representations and warranties of the Issuer and the Guarantors Company in this Agreement are true and correct, that ; the Issuer and the Guarantors have Company has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the such Closing Date, and that; 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 Issuer Company 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.
(kg) The Initial Purchasers Representatives shall have received a letter, dated the such Closing Date, of KPMG PricewaterhouseCoopers 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 business days prior to the such 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 Circularsubsection.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(m) 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.
(n) The 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 complied with.
(oh) On or prior to the Closing Date, the Credit date of this Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers Representatives shall have received a 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 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 Collateral Agreement (the “Perfection Certificate”) to be dated as date of the Closing Date, executed by an executive officer of the Issuer, together with all attachments contemplated thereby, which shall be correct and complete as of the Closing Datethis Agreement. The Issuer Company will furnish the Initial Purchasers Representatives with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers Representatives reasonably requestrequests. Credit Suisse The Representatives may in its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Sources: Purchase Agreement (Sunpower Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Securities Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing DateTILC, to the accuracy of the statements of officers of the Issuer and Guarantors TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and the Guarantors TILC of their its obligations hereunder in all material respects and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The RepresentativesOn the Closing Date, on behalf of the Initial Purchasers, Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP, in form and substance third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth a letter or letters, in the General Disclosure Packageform heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings the Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial PurchasersPurchasers 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 SecuritiesNotes; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries 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 the Issuer or any of its subsidiaries 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 any of its subsidiaries 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 reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered SecuritiesNotes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vivii) any major disruption of settlements of securities, payment securities or clearance services in the United States; or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor 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 SecuritiesNotes.
(dc) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W(i) ▇▇▇▇▇▇ & GPrice 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) (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 Issuer, TRLWT, TRL VII or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the 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 “▇▇▇▇▇▇▇ LLPRule”;
(vi) No consent, counsel 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, in substantially the form attached hereto as Exhibit A and reasonably acceptable TRLWT, TRL VII, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Initial Purchasers.Issuer, TRLWT, TRL VII, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer, 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;
(eviii) The Initial Purchasers shall have received an opinionexecution, dated delivery and performance of the Closing Date from L▇▇▇▇▇▇ & G▇▇▇ ▇.▇.Indenture, Missouri counsel for the other Transaction Documents to which the Issuer, TRLWT, TRL VII or TILC is a party, and this Agreement and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TRLWT, TRL VII, TILC, or any of their properties, or any agreement or instrument to which the Issuer, 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 in has full power and authority to authorize, issue and sell the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.Offered Notes as contemplated by this Agreement;
(fix) The Initial Purchasers shall Such counsel have received an opinionno reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, dated or any amendment or supplement thereto, as of the Closing Date from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer in the form Applicable Time and as 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 a certificate, dated the Closing Date, signed by contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the chief executive officer statements therein not misleading; and such counsel have no reason to believe that the chief financial officer of information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the IssuerPreliminary Offering Circular, 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 will comprise the General Disclosure Package, as of the exemption from registration for Applicable Time and as of the offer 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;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xi) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities Notes by the Issuer to the Initial Purchasers and pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers as in the manner contemplated hereby and other related matters as Initial Purchasers may requireby this Agreement, and to register the Issuer shall have furnished Offered Notes under the Securities Act or to such counsel such documents as they request for qualify an indenture in respect thereof under the purpose of enabling them to pass upon such matters.Trust Indenture Act;
(jxii) 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 PackagePreliminary Offering Circular and the Offering Circular under the captions “The Issuer”, there has been no material adverse change“The Railcars”, nor any development or event involving a prospective material adverse change“The Lessees”, in the condition (financial or other)“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Issuer Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and its subsidiaries taken as a whole except as set forth in or contemplated by Contribution Agreement”, “Description of the General Disclosure Package or as described in such certificate.
(k) The Initial Purchasers shall have received a letterInsurance Agreement”, dated “Description of the Closing DateHedge Agreements”, “Description of KPMG which meets the requirements Liquidity Facility” and “Description of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement Offered Notes and the Indenture.
(m) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds ”, insofar as they purport to summarize certain terms of the Offered Securities in accordance with this Agreement Notes and such other information as they may reasonably request.
(n) The Offered Securities shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the blanket representation letter applicable Transaction Documents, constitute a fair summary of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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 provisions purported 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, 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 the obligations of the Initial Purchasers hereunder.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 Offered Securities Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing DateTILC, to the accuracy of the statements of officers of the Issuer and Guarantors TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and the Guarantors TILC of their its obligations hereunder in all material respects and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The RepresentativesOn the Closing Date, on behalf of the Initial Purchasers, Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP, in form and substance third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth a letter or letters, in the General Disclosure Packageform heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings the Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial PurchasersPurchasers 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 SecuritiesNotes; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries 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 the Issuer or any of its subsidiaries 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 any of its subsidiaries 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 reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered SecuritiesNotes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vivii) any major disruption of settlements of securities, payment securities or clearance services in the United States; or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor 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 SecuritiesNotes.
(dc) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W(i) ▇▇▇▇▇▇ & GPrice 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; 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 “▇▇▇▇▇▇▇ LLPRule”;
(vi) No consent, counsel 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, in substantially the form attached hereto as Exhibit A and reasonably acceptable TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Initial Purchasers.Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(eviii) The Initial Purchasers shall have received an opinionexecution, dated delivery and performance of the Closing Date from L▇▇▇▇▇▇ & G▇▇▇ ▇.▇.Indenture, Missouri counsel for the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the form terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of Exhibit B hereto 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 reasonably acceptable the Issuer has full power and authority to authorize, issue and sell the Initial Purchasers.Offered Notes as contemplated by this Agreement;
(fix) The Initial Purchasers shall Such counsel have received an opinionno reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, dated or any amendment or supplement thereto, as of the Closing Date from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer in the form Applicable Time and as 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 a certificate, dated the Closing Date, signed by contained any untrue statement of a material fact or omitted to state any material fact necessary to make the chief executive officer statements therein not misleading; and such counsel have no reason to believe that the chief financial officer of information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the IssuerPreliminary Offering Circular, 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 will comprise the General Disclosure Package, as of the exemption from registration for Applicable Time and as of the offer 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;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xi) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities Notes by the Issuer to the Initial Purchasers and pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers as in the manner contemplated hereby and other related matters as Initial Purchasers may requireby this Agreement, and to register the Issuer shall have furnished Offered Notes under the Securities Act or to such counsel such documents as they request for qualify an indenture in respect thereof under the purpose of enabling them to pass upon such matters.Trust Indenture Act;
(jxii) 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 PackagePreliminary Offering Circular and the Offering Circular under the captions “The Issuer”, there has been no material adverse change“The Railcars”, nor any development or event involving a prospective material adverse change“The Lessees”, in the condition (financial or other)“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Issuer Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and its subsidiaries taken as a whole except as set forth in or contemplated by Contribution Agreement”, “Description of the General Disclosure Package or as described in such certificate.
(k) The Initial Purchasers shall have received a letterInsurance Agreement”, dated “Description of Hedge Agreements”, “Description of the Closing Date, Liquidity Facility Documents” and “Description of KPMG 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 business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement Offered Notes and the Indenture.
(m) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds ”, insofar as they purport to summarize certain terms of the Offered Securities in accordance with this Agreement Notes and such other information as they may reasonably request.
(n) The Offered Securities shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the blanket representation letter applicable Transaction Documents, constitute a fair summary of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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 provisions purported 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, 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 the obligations of the Initial Purchasers hereunder.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 Offered Securities Purchasers' obligations hereunder will be subject to the accuracy of the representations and warranties herein made on the part of the Issuer Seller, FSC and the Guarantors herein as of the date hereof and as of the Closing DateServicer, to the accuracy of the statements of the officers of each of the Issuer Seller, FSC and Guarantors the Servicer made pursuant to the provisions hereof, to the performance by the Issuer Seller, FSC and the Guarantors Servicer of their respective obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The Representatives, on behalf of the Initial Purchasers, Purchasers shall have received a customary “comfort letter”, dated the date fully executed copies of this Agreement, of KPMG LLP, in form the Supplemented Pooling Agreement and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings other Related Documents duly executed and its subsidiaries set forth in delivered by the General Disclosure Packageparties thereto.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this AgreementAgreement and prior to the Issuance Date, there shall not have occurred and be continuing (i) any change, or any development or event involving a prospective change, in or affecting particularly the condition (financial business or other)properties of the Seller, businessFSC, properties the Servicer or results Spirit of operations of Holdings and its subsidiaries taken as one enterprise America which, in the reasonable judgment of the Initial PurchasersPurchasers after consultation with the Seller and the Servicer, is material and adverse and makes it impractical or inadvisable to proceed with completion materially impairs the investment quality of the offering or the sale of and payment for the Offered SecuritiesCertificates; (ii) any downgrading reduction in or withdrawal of the rating of the Certificates issued by the Trust or any other debt securities of the Issuer Seller, the Servicer or any of its subsidiaries Affiliate thereof 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 the Certificates issued by the Trust or any other debt securities of the Issuer Seller, the Servicer or any of its subsidiaries Affiliate thereof (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, reduction in or withdrawal 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 secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange, 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 moratorium declared by U.S. Federal securities settlement or New York authoritiesclearance services; if, in the reasonable judgment of the Initial Purchasers, the effect of any such disruption makes it impractical or inadvisable to proceed with completion of the resale of the Offered Certificates; or (vi) any major disruption of settlements of securities, payment or clearance services in the United States; or (vii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit SuissePurchasers, the effect of any such attack, outbreak, escalation, act, declaration, calamity calamity, emergency or emergency change makes it impractical or inadvisable to proceed with completion of the offering or sale resale of and payment for the Offered SecuritiesCertificates.
(c) The Initial Purchasers shall have received an opinion of Colin D. Stern, Esq., Executive Vice President and General Counsel ▇▇ ▇▇arming, dated the Issuance Date and addressed to the Initial Purchasers, satisfactory in form and substance to the Representative and its counsel as to the matters set forth in Exhibit A.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, an opinion of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, local tax counsel for the IssuerSeller and the Servicer, each dated the Issuance Date, regarding certain Ohio and Georgia tax matters in substantially the form attached hereto as Exhibit A and reasonably acceptable substance reasonable satisfactory to the Initial PurchasersRepresentative and its counsel.
(e) The Initial Purchasers shall have received an opinionopinion of Mayer, Brown, Rowe & Maw LLP, dated the Closing Issuance Date from L▇▇▇▇and addressed ▇▇ & G▇t▇▇ ▇.▇.nitial Purchasers, Missouri satisfactory in form and substance to the Representative and its counsel for as to the Issuer matters set forth in Exhibit B. Such counsel shall also deliver a letter, dated the form of Exhibit B hereto Issuance Date and reasonably acceptable 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 opinionopinion of Mayer, Brown, Rowe & Maw LLP, dated the Closing Issuance Date from M▇▇▇▇▇and addressed ▇▇ & M▇▇▇▇t▇▇ LLC▇nitial Purchasers, Ohio counsel for the Issuer in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchaserseffect 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 opinionopinion of Squire, Sanders & Dempsey LLP, dated the Closing Issuance Date from Aand addresse▇ ▇▇ ▇he ▇▇▇▇▇▇▇ & R▇▇▇▇ LLPPurchasers, Texas counsel for the Issuer in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchaserseffect 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 a certificatean opinion of Mayer, Brown, Rowe & Maw LLP, dated the Closing DateIssuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, signed by with respect to (a) the chief executive officer nonconsolidation of FSC with the Seller and (b) certain matters relating to the chief financial officer transfer of the IssuerReceivables from Spirit of America to the Seller, certifying all information for in each case in form and substance satisfactory to the years 2003 Representative and 2004 in Item 6. Selected Financial Data of the annual report on Form 10-K for the fiscal year ended 2007 for Holdingsits counsel.
(i) The Initial Purchasers shall have received from Cravathcopies of UCC-1 financing statements filed in the offices of the Secretaries of State of the State of Ohio and the District of Columbia, Swaine 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 & MSutcliffe LLP, special counsel for the Initial ▇▇▇▇▇▇▇▇rs, ▇▇▇▇▇▇▇ LLPto customary qualifications, assumptions, limitations and exceptions, dated the 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 Initial Purchasers, such opinion or opinionsTrustee, dated the Closing DateIssuance ▇▇▇e and addressed to the Initial Purchasers, with respect to the incorporation general corporate matters, enforceability of the IssuerRelated Documents to which the Trustee is a party, the validity due authentication and delivery of the Offered SecuritiesCertificates and such other matters as the Representative shall request, the Final Offering Circular in form and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer substance satisfactory to the Initial Purchasers Representative 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 mattersits counsel.
(jl) The Initial Purchasers shall have received a certificatecertificate or certificates, dated the Closing Issuance Date, of the President a vice president or any Vice President and a principal financial or accounting more senior officer of each of the Issuer Seller, FSC and each Guarantor the Servicer in which such officersofficer, to the best of their his or her knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that (A) the representations and warranties of the Issuer Seller, FSC and the Guarantors Servicer, as applicable, contained in this Agreement are true and correctcorrect in all material respects on and as of the Issuance Date, that (B) the Issuer Seller, FSC and the Guarantors have Servicer, as applicable, has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Issuance Date, (C) the representations and thatwarranties 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 representations and warranties relate to an earlier date, and (D) subsequent to the date as of the most recent financial statements which information is given in the General Disclosure PackageFinal Memorandum, and except as set forth or contemplated in the Final Memorandum or such certificate, there has been no material adverse change, nor any development or event involving a prospective material adverse change, change in the condition (financial or other), business, properties or results of operations otherwise) of the Issuer and its subsidiaries taken Seller, FSC or the Servicer, as a whole except as set forth in applicable, or contemplated by the General Disclosure Package or as described in such certificate.
(k) The Initial Purchasers shall have received a letter, dated the Closing Date, any of KPMG 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 business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenturetheir respective Affiliates.
(m) The Initial Purchasers shall have been furnished with wiring instructions for received a letter of Ernst & Young addressed to the application of Seller and the proceeds of Initial Purchasers r▇▇▇▇▇ing the Offered Securities Receivables, substantially in accordance with this Agreement the form heretofore agreed to and such other information as they may reasonably requestotherwise in form and in substance satisfactory to the Representative and its counsel.
(n) The 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 complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of letters from 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 Rating Agencies stating 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 Class A Certificates have received a rating of "AAA" and "Aaa" by Standard & Poor's and Moody's, respectively, (ii) as to which the Representatives Class M Certificates have received documentation reasonably satisfactory to it evidencing ▇ rating of "AA" and "Aa2" by Standard & Poor's and Moody's respectively, (iii) the termination Class B Certificates have ▇▇▇▇▇▇▇d a rating of such liens.
"A" and "A2" by Standard and Poor's and Moody's, respectively, (siv) On the Class C Certificates have ▇▇▇▇▇▇▇d a rating of "Baa2" by Moody's and (v) confirming that the rating of any certific▇▇▇▇ ▇▇ any other Series issued by the Trust will not be withdrawn or prior to the Closing Date, the Initial Purchasers shall have received reduced as a completed certificate in the form attached to the Collateral Agreement (the “Perfection Certificate”) to be dated as result of the Closing Date, executed by an executive officer issuance 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 the obligations of the Initial Purchasers hereunderCertificates.
Appears in 1 contract
Sources: Certificate Purchase Agreement (Charming Shoppes Inc)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Securities Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing DateTILC, to the accuracy of the statements of officers of the Issuer and Guarantors TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and the Guarantors TILC of their its obligations hereunder in all material respects and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The RepresentativesOn the Closing Date, on behalf of the Initial Purchasers, Purchasers shall have received from a customary “comfort letter”, dated the date of this Agreement, of KPMG LLP, in form and substance third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth a letter or letters, in the General Disclosure Packageform heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings the Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial PurchasersPurchasers 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 SecuritiesNotes; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries 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 the Issuer or any of its subsidiaries 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 any of its subsidiaries 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 reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered SecuritiesNotes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vivii) any major disruption of settlements of securities, payment securities or clearance services in the United States; or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers including Credit Suisseor 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 SecuritiesNotes.
(dc) The Initial Purchasers shall have received opinions, dated the Closing Date, of P▇▇▇, Weiss, Rifkind, W(i) ▇▇▇▇▇▇ & GPrice 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:
(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, 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 “▇▇▇▇▇▇▇ LLPRule”;
(F) No consent, counsel 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, in substantially the form attached hereto as Exhibit A and reasonably acceptable TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Initial Purchasers.Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(eH) The Initial Purchasers shall have received an opinionexecution, dated delivery and performance of the Closing Date from L▇▇▇▇▇▇ & G▇▇▇ ▇.▇.Indenture, Missouri counsel for the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the form terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of Exhibit B hereto 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 reasonably acceptable the Issuer has full power and authority to authorize, issue and sell the Initial Purchasers.Offered Notes as contemplated by this Agreement;
(fI) The Initial Purchasers shall Such counsel have received an opinionno reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, dated or any amendment or supplement thereto, as of the Closing Date from M▇▇▇▇▇▇▇ & M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer in the form Applicable Time and as 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 a certificate, dated the Closing Date, signed by contained any untrue statement of a material fact or omitted to state any material fact necessary to make the chief executive officer statements therein not misleading; and such counsel have no reason to believe that the chief financial officer of information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the IssuerPreliminary Offering Circular, 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 will comprise the General Disclosure Package, as of the exemption from registration for Applicable Time and as of the offer 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;
(J) This Agreement has been duly authorized, executed and delivered by each of the Issuer and ▇▇▇▇;
(K) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities Notes by the Issuer to the Initial Purchasers and pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers as in the manner contemplated hereby and other related matters as Initial Purchasers may requireby this Agreement, and to register the Issuer shall have furnished Offered Notes under the Securities Act or to such counsel such documents as they request for qualify an indenture in respect thereof under the purpose of enabling them to pass upon such matters.Trust Indenture Act;
(jL) 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 PackagePreliminary Offering Circular and the Offering Circular under the captions “The Issuer”, there has been no material adverse change“The Railcars”, nor any development or event involving a prospective material adverse change“The Lessees”, in the condition (financial or other)“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Issuer Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and its subsidiaries taken as a whole except as set forth in or contemplated by Contribution Agreement”, “Description of the General Disclosure Package or as described in such certificate.
(k) The Initial Purchasers shall have received a letterInsurance Agreement”, dated “Description of the Closing DateHedge Agreements”, “Description of KPMG which meets the requirements Liquidity Facility Documents” and “Description of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(l) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement Offered Notes and the Indenture.
(m) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds ”, insofar as they purport to summarize certain terms of the Offered Securities in accordance with this Agreement Notes and such other information as they may reasonably request.
(n) The Offered Securities shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the blanket representation letter applicable Transaction Documents, constitute a fair summary of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents 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 provisions purported 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, 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 the obligations of the Initial Purchasers hereunder.summarized;
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