Conditions of the Obligations of the Initial Purchasers. The obligations of the 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 Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant to the provisions hereof, to the performance by the Issuer and Holdings of their obligations hereunder and to the following additional conditions precedent: (a) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in a form satisfactory to the Initial Purchasers in all respects. (b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities. (c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date. (d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Simpson, Thacher & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B. (e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C. (f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate. (h) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection. (i) The Issuer, Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof. (j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof. (k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent. (l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market. (m) On or prior to the Closing Date, the Issuer shall have provided to each of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the 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 Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant to the provisions hereof, to the performance by the Issuer and Holdings of their obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in a form satisfactory to the Initial Purchasers in all respects.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Simpson▇▇▇▇▇▇▇, Thacher ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(i) The IssuerIssuer , Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the 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 Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant to the provisions hereof, to the performance by the Issuer and Holdings of their obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of Arthur Andersen LLP in a form satisfactory to the ▇▇▇▇▇▇ ▇l ▇▇▇▇▇▇▇▇ LLP in a form satisfactory to the Initial Purchasers ers in all respects.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Simpson, Thacher & ▇▇▇▇▇▇▇▇Bartlett, counsel to the Issuer, Holdings and the Company▇▇▇▇▇▇▇, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Walter Stafford, Esq., Senior Vice President, Secr▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General al Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇Moore, counsel for the Initial Purchasers, such opinion op▇▇▇▇▇ or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of Arthur Anderson LLP which meets the requirements o▇ ▇▇▇▇e▇▇▇▇▇ (▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(i) The IssuerIssuer , Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Sources: Purchase Agreement (Wirta Raymond E)
Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Securities Initial Notes will be subject to the accuracy in all material respects of the representations and warranties on the part of the Issuer and Holdings herein, to the accuracy in all material respects of the statements of officers of the Issuer and the Company made pursuant to the provisions hereof, to the performance by the Issuer and Holdings of their its obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, together with the related engagement letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP PricewaterhouseCoopers in a the form satisfactory to the Initial Purchasers in all respects.attached hereto as Exhibit B.
(b) The Initial Purchasers shall have received a letter, together with the related engagement letter, dated the date of this Agreement, of Deloitte Touche Tohmatsu in the form attached hereto as Exhibit C.
(c) Subsequent to the execution and delivery of this AgreementAgreement and prior to the Closing Date, there shall not have occurred (i) a any change in U.S. the condition (financial or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the financial conditionother), business, properties or results of operations of the Company or its subsidiaries Issuer Group taken as a whole which, in the reasonable judgment of CSFBCa majority in interest 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 SecuritiesInitial Notes; (Bii) any downgrading in the rating of any debt securities of the Company Issuer or ▇▇▇▇▇▇▇ by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act)▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Rating Services, or any public announcement that any either of such organization organizations has under surveillance or review its rating of any debt securities of the Company Issuer or ▇▇▇▇▇▇▇ (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating)) or any announcement that the Issuer has been placed on negative outlook; (Ciii) any change in French, U.S., UK or international financial, political or economic conditions or currency exchange rates or exchange controls as would (or the effect of which on such financial markets would be such as would) in the reasonable judgment of a majority in interest of the Initial Purchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Initial Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, the London Stock Exchange or the Paris Stock Exchange, or any setting of minimum prices for trading on any such exchange, or by any suspension of trading of any securities of the Company on any such exchange or in the over-the-counter marketby any other governmental authority having jurisdiction; (Dv) any banking moratorium declared by U.S. Federal federal, New York, French or New York UK authorities; (vi) any major disruption of settlements of securities in the United States, the United Kingdom, Luxembourg or France or (Evii) any attack on, outbreak or escalation of major hostilities in which or acts of terrorism involving the United States is involvedStates, France or the United Kingdom, any declaration of war by Congress the U.S. Congress, the French Parliament, the UK Parliament or any other substantial national or international calamity or emergency if, in the reasonable judgment of CSFBCa majority in interest of the Initial Purchasers, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing DateInitial Notes.
(d) The Initial Purchasers shall have received such opinions, dated the Closing Date, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, U.S., UK and French counsel to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(e) The Initial Purchasers shall have received an opinion dated the Closing Date, including a disclosure statement, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. and New York counsel for the Issuer, in the form attached hereto as Exhibit D.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Simpson, Thacher Linklaters & ▇▇▇▇▇▇▇▇, Luxembourg counsel to for the Issuer, Holdings and the Company, substantially in the form of attached hereto as Exhibit B.E.
(eg) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Linklaters, French counsel for the Issuer, in the form attached hereto as Exhibit F.
(h) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Partners, Esq.Italian counsel for the Issuer, Senior Vice President, Secretary and General Counsel of the Company substantially in the form of attached hereto as Exhibit C.G.
(fi) The Initial Purchasers shall have received from Cravathan opinion, Swaine dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, S.C., Mexican counsel for the Issuer and the Initial Purchasers, in the form attached hereto as Exhibit H.
(j) The Initial Purchasers shall have received an opinion, dated the Closing Date, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the Issuer, in the form attached hereto as Exhibit I.
(k) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Linklaters & Alliance, English counsel for the Issuer, in the form attached hereto as Exhibit J.
(l) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, Connecticut counsel for the Initial PurchasersIssuer, such opinion or opinions, dated in the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers form attached hereto as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.Exhibit K.
(gm) The Initial Purchasers shall have received a certificate, dated the Closing Date, from two of Messrs. Grappotte, Bazil or ▇▇▇▇▇▇▇, each a director of the Chief Executive OfficerIssuer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officersexecutive directors, to the best of their knowledge after reasonable investigationinquiry, shall state that the representations and warranties made by of the Issuer and Holdings with respect to the Company in this Agreement are true and correct correct, in all material respects, as of the Closing Date, that the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the respective date dates of the most recent financial statements in the Offering Document, Circular there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial conditionor other), business, properties business or results of operations of the Company Issuer and its subsidiaries the Material Subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificateCircular.
(hn) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP PricewaterhouseCoopers which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsectionSection 6.
(io) The Issuer, Holdings and the Trustee shall have entered into the Indenture and you Initial Purchasers shall have received counterpartsa letter, conformed as executeddated the Closing Date, thereofof Deloitte Touche Tohmatsu which meets the requirements of subsections (b) of this Section 6.
(jp) The Issuer and Holdings Each of the High Yield Closing Date Agreements shall have entered into been executed by each party thereto and, assuming with respect to the Registration Rights Agreement only that such agreement has been duly executed and you delivered by the Initial Purchaser, such agreements shall have received counterparts, conformed as executed, thereofbe in full force and effect.
(kq) The Issuer and Holdings shall have entered into an escrow agreement with No stop order preventing the Escrow Agent and, on use of the Closing Date, will deposit Offering Circular or any order asserting that any of the Escrowed Funds with transactions contemplated by this Agreement are subject to the Escrow Agent.
(l) The Offered registration requirements of the U.S. Securities Act shall have been designated PORTAL securities issued. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request. The Joint Lead Managers may in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each their sole discretion waive on behalf of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Sources: Purchase Agreement (Fimep Sa)
Conditions of the Obligations of the Initial Purchasers. The obligations of the 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 Issuer, TILC, RIV 2013 and Holdings hereinTRP Holdings, to the accuracy of the statements of officers of the Issuer Issuer, TILC, RIV 2013 and the Company TRP Holdings made pursuant to the provisions hereof, to the performance by each of the Issuer Issuer, TILC, RIV 2013 and TRP Holdings of their its obligations hereunder and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The On the Closing Date, the Initial Purchasers shall have received from a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in third party that is a form nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in all respectsthe form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial conditionor other), business, properties or results of operations of the Company Issuer, TILC, RIV 2013 or TRP Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of CSFBCthe Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered SecuritiesNotes; (Bii) any downgrading in the rating of any debt securities of the Company TILC, RIV 2013 or TRP Holdings by any "“nationally recognized statistical rating organization" ” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company TILC, RIV 2013 or TRP Holdings (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating)) or any announcement by such organization that the Issuer, TILC, RIV 2013 or TRP Holdings has been placed on negative outlook; (Ciii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange, or ; (v) any suspension of trading of any securities of the Company Issuer, TILC, RIV 2013 or TRP Holdings or any of its affiliates on any exchange or in the over-the-counter over‑the‑counter market; (Dvi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (Eviii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBCthe Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered SecuritiesNotes.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinionopinions, dated the Closing Date, of Simpson(i) ▇▇▇▇▇▇ Price P.C., Thacher & counsel for the Issuer, (ii) the Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
i. The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information;
ii. TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iii. RIV 2013 has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; RIV 2013 is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iv. TRP Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TRP Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
v. The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, enforceable against the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
vi. The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
vii. The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “▇▇▇▇▇▇▇▇▇ Rule”;
viii. No consent, 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;
ix. There are no pending actions, suits or proceedings against or affecting the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC, RIV 2013, TRP Holdings and the Companyor any of their respective subsidiaries, substantially would individually or in the form of Exhibit B.
(e) The Initial Purchasers shall aggregate have received an opiniona Material Adverse Effect, dated or would materially and adversely affect the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel ability of the Company substantially Issuer, TILC, RIV 2013 or TRP Holdings to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation context of the Issuer or the Company, the validity sale of the Offered SecuritiesNotes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
x. The execution, delivery and performance of the Indenture, the Offering Circularother Transaction Documents to which the Issuer, TILC, RIV 2013 or TRP Holdings is a party, and this Agreement and the exemption from registration for issuance of the offer Offered Notes and sale of the Offered Securities Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, RIV 2013, TRP Holdings, or any of their properties, or any agreement or instrument to which the Issuer, TILC, RIV 2013 or TRP Holdings is a party or by which the Issuer, TILC, RIV 2013 or TRP Holdings is bound or to which any of the properties of the Issuer, TILC, RIV 2013 or TRP Holdings is subject, or the organizational or formation documents of the Issuer, TILC, RIV 2013 or TRP Holdings, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
xi. Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
xii. This Agreement has been duly authorized, executed and delivered by each of the Issuer, TILC, RIV 2013 and TRP Holdings;
xiii. It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers 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 CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officersby this Agreement, to register the best of their knowledge after reasonable investigation, shall state that Offered Notes under the representations and warranties made by Securities Act or to qualify an indenture in respect thereof under the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial Trust Indenture Act;
xiv. The statements in the Preliminary Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company Circular and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated Circular under the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(i) captions “The Issuer”, Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts“The Railcars”, conformed as executed, thereof.
(j) “The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.Lessees”,
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer Company and Holdings the Guarantor herein, to the accuracy of the statements of officers of the Issuer Company and the Company Guarantor made pursuant to the provisions hereof, to the performance by the Issuer Company and Holdings the Guarantor of their obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PricewaterhouseCoopers LLP ("PWC") in a form and substance satisfactory to the Initial Purchasers concerning certain of the financial information set forth in all respectsthe Offering Document.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial conditionor other), business, properties or results of operations of the Company Company, the Guarantor and their respective subsidiaries taken as one enterprise or ARC and its subsidiaries taken as one enterprise, which, in the reasonable judgment of CSFBCa majority in interest of the Initial Purchasers including CSFB, 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; (Bii) any downgrading in the rating of any debt securities of the Company or ARC by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company or ARC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating)) or any announcement that the Company or ARC has been placed on negative outlook; (Ciii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a majority in interest of the Initial Purchasers including CSFB, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the 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, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (Dv) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States; or (Evii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBCa majority in interest of the Initial Purchasers including CSFB, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There The Initial Purchasers shall exist at and as of the Closing Date no condition that would constitute a default (or have received an event that with notice or lapse of timeopinion, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at dated the Closing Date, of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantor, reasonably acceptable to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Initial Purchasers and substantially in the form of Exhibit A attached hereto.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of SimpsonLeBoeuf, Thacher Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., regulatory counsel for the Company and the Guarantor, reasonably acceptable to ▇▇, counsel to the Issuer, Holdings ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Company, Initial Purchasers and substantially in the form of Exhibit B.B attached hereto.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the formation or incorporation of the Issuer or Company and the CompanyGuarantor, as the case may be, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer Company and the Guarantor to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC the Initial Purchasers may require, and the Issuer Company and the Company Guarantor shall have furnished to such counsel such documents as they may request for the purpose of enabling them to pass upon such matters.
(gf) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas President or any Vice President and a principal financial or accounting officer of the Company in which such officers, officers shall state that to the best of their knowledge after reasonable investigation, shall state that (A) the representations and warranties made by the Issuer and Holdings with respect to of the Company in this Agreement are true and correct in all material respects (without giving duplicative effect to any materiality qualifiers), that the Company has complied with all agreements and that, satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (B) subsequent to the respective date dates of the most recent financial statements in the Offering Document, Document there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial conditionor other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(g) In the event the Transactions close on the Closing Date, the Initial Purchasers shall have received (i) an executed signature page to this Agreement from the Guarantor on the Closing Date, (ii) a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Guarantor similar to the certificate delivered pursuant to Section 6(f) hereof, (iii) an executed copy of the Certificates of Merger filed with the Secretary of State of the State of Delaware in connection with the Transactions and (iv) a certificate, dated the Closing Date, of the secretary of the Guarantor certifying as to the organizational documents of the Guarantor and any resolutions of the board with respect to the Transactions. In the event the Transactions do not close on the Closing Date, the Guarantor will deliver an executed signature page to this Agreement on the closing of the Transactions pursuant to Section 5(k) hereof.
(h) In the event the Transactions do not close on the Closing Date, the Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company certifying that the Company has deposited an amount equal to $223,283,593.75, which represents 97.25% of the aggregate principal amount of the Notes plus accrued and unpaid interest on the Notes to, but not including, March 1, 2004, into the Escrow Account.
(i) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which PWC that meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(ij) The Issuer, Holdings and the Trustee shall have entered into the Indenture and you Collateral Agent shall have received counterparts, conformed as executed, thereof.(with a copy for the Initial Purchasers) at the Closing Date:
(ji) The Issuer appropriately completed copies, which have been duly authorized for filing by the appropriate Person, of Uniform Commercial Code financing statements naming the Company and Holdings each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies, which have been duly authorized for filing by the appropriate Person, of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens of any Person in any Collateral described in the Collateral Agreements previously granted by any Person, other than Permitted Liens; and
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall have entered into cover any Collateral described in the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereofCollateral Agreements (other than such financing statements that evidence Permitted Liens).
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to As of the Closing Date, the Issuer shall have provided to each representations and warranties contained in the Collateral Agreements will be true and correct in all respects. The Company and the Guarantor will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably requests. CSFB may in its sole discretion waive on behalf of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the 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 Holdings hereinTILC, to the accuracy of the statements of officers of the Issuer and the Company TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and Holdings TILC of their its obligations hereunder and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The On the Closing Date, the Initial Purchasers shall have received from a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in third party that is a form nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in all respectsthe form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial conditionor other), business, properties or results of operations of the Company Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of CSFBCthe Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered SecuritiesNotes; (Bii) any downgrading in the rating of any debt securities of the Company 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 Company TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating)) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (Ciii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or ; (v) any suspension of trading of any securities of the Company Issuer or TILC or any of its affiliates on any exchange or in the over-the-counter over‑the‑counter market; (Dvi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (Eviii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBCthe Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered SecuritiesNotes.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinionopinions, dated the Closing Date, of Simpson(i) ▇▇▇▇▇▇ Price P.C., Thacher & 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 “▇▇▇▇▇▇▇▇▇ Rule”;
(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, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, Holdings and the CompanyTILC or any of their respective subsidiaries, substantially would individually or in the form of Exhibit B.
(e) The Initial Purchasers shall aggregate have received an opiniona Material Adverse Effect, dated or would materially and adversely affect the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation ability of the Issuer or TILC to perform their respective obligations under the CompanyIndenture, this Agreement, or any other Transaction Document or which are otherwise material in the validity context of the sale of the Offered SecuritiesNotes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(viii) The execution, delivery and performance of the Indenture, the Offering Circularother Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the exemption from registration for the offer issuance and sale of the Offered Securities Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(ix) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(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 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 CSFBC may requireby this Agreement, and to register the Issuer and Offered Notes under the Company shall have furnished 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;
(gxii) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Preliminary Offering DocumentCircular 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 financial condition“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Company 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 Offering Document or as described in such certificate.
(h) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(i) The Issuer, Holdings Offered Notes and the Trustee shall have entered into the Indenture and you shall have received counterpartsIndenture”, conformed insofar as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating they purport to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each summarize certain terms of the Initial Purchasers Offered Notes and counsel to the Initial Purchasers copies applicable Transaction Documents, constitute a fair summary of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements provisions purported to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive 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 obligations of the 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 Holdings hereinTILC, to the accuracy of the statements of officers of the Issuer and the Company TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and Holdings TILC of their its obligations hereunder and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The On the Closing Date, the Initial Purchasers shall have received from a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in third party that is a form nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in all respectsthe form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial conditionor other), business, properties or results of operations of the Company Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of CSFBCthe Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered SecuritiesNotes; (Bii) any downgrading in the rating of any debt securities of the Company 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 Company TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating)) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (Ciii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange, or ; (v) any suspension of trading of any securities of the Company Issuer or TILC or any of its affiliates on any exchange or in the over-the-counter market; (Dvi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (Eviii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBCthe Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered SecuritiesNotes.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinionopinions, dated the Closing Date, of Simpson(i) ▇▇▇▇▇▇ Price P.C., Thacher & 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 “▇▇▇▇▇▇▇▇▇ Rule”;
(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, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, Holdings and the CompanyTILC or any of their respective subsidiaries, substantially would individually or in the form of Exhibit B.
(e) The Initial Purchasers shall aggregate have received an opiniona Material Adverse Effect, dated or would materially and adversely affect the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation ability of the Issuer or TILC to perform their respective obligations under the CompanyIndenture, this Agreement, or any other Transaction Document or which are otherwise material in the validity context of the sale of the Offered SecuritiesNotes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(H) The execution, delivery and performance of the Indenture, the Offering Circularother Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the exemption from registration for issuance of the offer Offered Notes and sale of the Offered Securities Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(I) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(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 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 CSFBC may requireby this Agreement, and to register the Issuer and Offered Notes under the Company shall have furnished 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;
(gL) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Preliminary Offering DocumentCircular 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 financial condition“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Company 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 Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letterInsurance Agreement”, dated “Description of the Closing DateHedge Agreements”, “Description of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP 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 days prior to the Closing Date for the purposes of this subsection.
(i) The Issuer, Holdings Offered Notes and the Trustee shall have entered into the Indenture and you shall have received counterpartsIndenture”, conformed insofar as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating they purport to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each summarize certain terms of the Initial Purchasers Offered Notes and counsel to the Initial Purchasers copies applicable Transaction Documents, constitute a fair summary of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements provisions purported to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive 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 obligations obligation of the Initial Purchasers to purchase and pay for the Offered Securities Class A Certificates will be subject to the accuracy of the representations and warranties on the part of NMG and the Issuer and Holdings Seller herein, to the accuracy of the statements of officers of the Issuer NMG and the Company Seller made pursuant to the provisions hereof, to the performance by the Issuer and Holdings of their obligations Seller hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received from Deloitte & Touche LLP a letterletter or letters, dated the date of this Agreementthe Final Offering Memorandum, confirming that they are independent public accountants within the meaning of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP the Securities Act and otherwise in a form and substance satisfactory to the Initial Purchasers in all respectsand counsel to the Initial Purchasers.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in or affecting particularly the financial condition, business, business or properties or results of operations of the Company Trust or its subsidiaries NMG or the Seller which, in the reasonable judgment of CSFBCthe Initial Purchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion could materially impair the investment quality of the offering or the sale of and payment for the Offered SecuritiesClass A Certificates; (Bii) any downgrading in the rating of any debt securities of the Company Trust or NMG or the Seller, by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company Trust or NMG or the Seller (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (Ciii) any suspension or limitation of trading of any securities of NMG or the Seller on any exchange or in securities generally on the New York Stock Exchange, over-the-counter market or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (Eiv) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBCthe Initial Purchasers, the effect effects of any such outbreak, escalation, declaration, calamity or emergency makes could make it impractical or inadvisable to proceed with completion of the offering or sale of of, and payment for for, the Offered SecuritiesClass A Certificates.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Simpson, Thacher & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of signed by the Chief Executive Officer, Chairman of the Americas President or any Vice President and a the principal financial or principal accounting officer or the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of each of NMG and the Company in which such officers, Seller to the best effect that the signers of their knowledge after reasonable investigationsuch certificate, shall state certify on behalf of NMG and the Seller, that they have carefully examined the Basic Documents and the Final Offering Memorandum and stating that:
(i) the representations and warranties made by of NMG and the Issuer and Holdings with respect to Seller in the Company in this Agreement Basic Documents are true and correct in all material respects at and that, subsequent as of the date of such certificate as if made on and as of such date (except to the respective extent they expressly relate to an earlier date);
(ii) NMG and the Seller have complied, in all material respects, with all the agreements and satisfied, in all material respects, all the conditions on the part of NMG and the Seller to be performed or satisfied at or prior to the date of such certificate; and
(iii) nothing has come to the most recent financial attention of NMG or the Seller that would lead NMG or the Seller to believe that the Final Offering Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse changetherein, in the financial condition, business, properties or results of operations light of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificatecircumstances under which they were made, not misleading.
(hd) The Initial Purchasers Mayer, Brown & Platt shall have received delivered a letter, dated the Closing Date, of favorabl▇ ▇▇▇▇ini▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to ted the Closing Date for the purposes of this subsection.
(i) The Issuer, Holdings in form and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each of the Initial Purchasers and counsel substance reasonably satisfactory to the Initial Purchasers copies of all Transaction Documents executed Purchasers, and delivered on or prior NMG and the Seller shall have furnished to such date (and, counsel such documents as they reasonably request for the purpose of enabling them to the extent available, drafts of Transaction Agreements to be executed pass on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereundersuch matters.
Appears in 1 contract
Sources: Class a Purchase Agreement (Neiman Marcus Group Inc)
Conditions of the Obligations of the Initial Purchasers. The Initial Purchasers' obligations of the Initial Purchasers to purchase and pay for the Offered Securities hereunder will be subject to the accuracy of the representations and warranties herein made on the part of the Issuer Seller, FSC and Holdings hereinthe Servicer, to the accuracy of the statements of the officers of each of the Issuer Seller, FSC and the Company Servicer made pursuant to the provisions hereof, to the performance by the Issuer Seller, FSC and Holdings the Servicer of their respective obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated the date fully executed copies of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in a form satisfactory to the Initial Purchasers in all respectsSupplemented Pooling Agreement and the other Related Documents duly executed and delivered by the parties thereto.
(b) Subsequent to the execution and delivery of this AgreementAgreement and prior to the Issuance Date, there shall not have occurred and be continuing (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in or affecting particularly the financial condition, business, business or properties or results of operations of the Company Seller, FSC, the Servicer or its subsidiaries Spirit of America which, in the reasonable judgment of CSFBCthe Initial Purchasers 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; (Bii) any downgrading reduction in or withdrawal of the rating of the Certificates issued by the Trust or any other debt securities of the Company Seller, the Servicer or any Affiliate thereof by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or 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 Company Seller, the Servicer or any 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); (Ciii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company Seller or the Servicer or any Affiliate of the Seller or the Servicer on any exchange or in the any over-the-counter market; (Div) any a general moratorium on commercial banking moratorium activities in New York shall have been declared by U.S. either Federal or New York State authorities; (v) any material disruption in commercial banking securities settlement or clearance services; if, in the reasonable judgment of the Initial Purchasers, the effect of any such disruption makes it impractical or inadvisable to proceed with completion of the resale of the Offered Certificates; or (Evi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of CSFBCthe Initial Purchasers, the effect of any such outbreak, escalation, 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) There The Initial Purchasers shall exist at 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 of to the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as matters set forth in effect or as in draft form at the Closing Date.Exhibit A.
(d) The Initial Purchasers shall have received an opinionopinion of local tax counsel for the Seller and the Servicer, each dated the Closing Issuance Date, of Simpson, Thacher & ▇▇▇▇▇▇▇▇, counsel regarding certain Ohio and Georgia tax matters in form and substance reasonable satisfactory to the Issuer, Holdings Representative and the Company, substantially in the form of Exhibit B.its counsel.
(e) The Initial Purchasers shall have received an opinionopinion of Mayer, Brown, Rowe & Maw LLP, dated the Issuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, satisfactory in form and substance to the Representative and its counsel as to the matters set forth in Exhibit B. Such counsel shall also deliver a letter, dated the Issuance Date and addressed to the Initial Purchasers, stating that such counsel has participated in conferences with representatives of the Seller and the Servicer, the Initial Purchasers and counsel to the Initial Purchasers concerning the Final Memorandum, and that, on the basis of the information such counsel gained in the course of performing its professional engagement, nothing came to its attention that caused it to believe that the Final Memorandum, as of its date, or as of the Closing Date, contained or contains any untrue statement of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, Esq., Senior Vice President, Secretary and General Counsel in light of the Company substantially 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 form Final Memorandum (except for the statements under the headings "Structural Summary--ERISA Considerations for Investors." "Legal Aspects of Exhibit C.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 from Cravathan opinion of Mayer, Swaine Brown, Rowe & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinionsMaw LLP, dated the Closing DateIssuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, with respect to the incorporation effect that the transfer of Receivables from the Seller to the Trust creates a first priority perfected security interest in such Receivables in favor of the Issuer or the CompanyTrustee, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer in form 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 CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersits counsel.
(g) The Initial Purchasers shall have received a certificatean opinion of Squire, Sanders & Dempsey LLP, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President Issuance Date and a principal financial or accounting officer of the Company in which such officersaddresse▇ ▇▇ ▇he ▇▇▇▇▇▇▇ Purchasers, to the best of their knowledge after reasonable investigation, shall state effect that the representations and warranties made by the Issuer and Holdings with respect transfer of Receivables from Spirit of America to the Company Seller creates a first priority perfected security interest in this Agreement are true such Receivables in favor of the Seller, in form and correct and that, subsequent substance satisfactory to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company Representative and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificatecounsel.
(h) The Initial Purchasers shall have received a letteran opinion of Mayer, Brown, Rowe & Maw LLP, dated the Closing Date, of ▇▇▇▇Issuance Date and addressed ▇▇ t▇▇ ▇nitial Purchasers, with respect to (a) the nonconsolidation of FSC with the Seller and (b) certain matters relating to the transfer of the Receivables from Spirit of America to the Seller, in each case in form and substance satisfactory to the Representative and its counsel.
(i) The Initial Purchasers shall have received copies of UCC-1 financing statements filed in the offices of the Secretaries of State of the State of Ohio and the District of Columbia, in the case of Spirit of America, and the State of Delaware, in the case of the Seller, reflecting the interests of the Seller and the Trust in the Receivables.
(j) The Representative shall have received an opinion of Orrick, Herrington & Sutcliffe LLP, special counsel for the Initial ▇▇▇▇▇▇▇▇rs, ▇▇▇▇▇▇▇ LLP which meets to customary qualifications, assumptions, limitations and exceptions, dated the requirements of subsection (a) of this SectionIssuance Date, except that the specified date referred to in such subsection will be a date not more than three days prior form and substance reasonably satisfactory to the Closing Date for Representative, to the purposes of this subsection.
(i) The Issuer, Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.effect set forth in Exhibit C.
(k) The Issuer and Holdings Initial Purchasers shall have entered into received an escrow agreement opinion from Pepper, Hamilton & Sheetz, counsel for the Trustee, dated the Issuance ▇▇▇e and addressed to the Initial Purchasers, with respect to general corporate matters, enforceability of the Escrow Agent andRelated Documents to which the Trustee is a party, on due authentication and delivery of the Closing DateOffered Certificates and such other matters as the Representative shall request, will deposit in form and substance satisfactory to the Escrowed Funds with the Escrow AgentRepresentative and its counsel.
(l) The Offered Securities Initial Purchasers shall have been designated PORTAL securities received a certificate or certificates, dated the Issuance Date, of a vice president or more senior officer of each of the Seller, FSC and the Servicer in accordance which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (A) the representations and warranties of the Seller, FSC and the Servicer, as applicable, contained in this Agreement are true and correct in all material respects on and as of the Issuance Date, (B) the Seller, FSC and the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the rules Issuance Date, (C) the representations and regulations adopted by warranties of the NASD relating to trading Seller, FSC or the Servicer, as applicable, in the PORTAL marketRelated 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 which information is given in the Final Memorandum, and except as set forth or contemplated in the Final Memorandum or such certificate, there has been no material adverse change in the condition (financial or otherwise) of the Seller, FSC or the Servicer, as applicable, or any of their respective Affiliates.
(m) On or prior The Initial Purchasers shall have received a letter of Ernst & Young addressed to the Closing DateSeller and the Initial Purchasers r▇▇▇▇▇ing the Receivables, substantially in the Issuer form heretofore agreed to and otherwise in form and in substance satisfactory to the Representative and its counsel.
(n) The Initial Purchasers shall have provided to received letters from each of the Initial Purchasers Rating Agencies stating that (i) the Class A Certificates have received a rating of "AAA" and counsel to "Aaa" by Standard & Poor's and Moody's, respectively, (ii) the Initial Purchasers copies Class M Certificates have received ▇ rating of all Transaction Documents executed "AA" and delivered on "Aa2" by Standard & Poor's and Moody's respectively, (iii) the Class B Certificates have ▇▇▇▇▇▇▇d a rating of "A" and "A2" by Standard and Poor's and Moody's, respectively, (iv) 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 such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date reduced as a result of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations issuance 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 obligations of the 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 Holdings herein, to the accuracy of the statements of officers of the Issuer and the Company made pursuant to the provisions hereof, to the performance by the Issuer and Holdings of their obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in a form satisfactory to the Initial Purchasers in all respects.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Simpson, Thacher & ▇▇▇▇▇▇▇▇, counsel to the Issuer, Holdings and the Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer or the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(h) The Initial Purchasers shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(i) The IssuerIssuer , Holdings and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each of the Initial Purchasers and counsel to the Initial Purchasers copies of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligations of the 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 Holdings hereinTILC, to the accuracy of the statements of officers of the Issuer and the Company TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and Holdings TILC of their its obligations hereunder and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The On the Closing Date, the Initial Purchasers shall have received from a letter, dated the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in third party that is a form nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in all respectsthe form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial conditionor other), business, properties or results of operations of the Company Issuer or TILC and its subsidiaries taken as one enterprise which, in the reasonable judgment of CSFBCthe Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered SecuritiesNotes; (Bii) any downgrading in the rating of any debt securities of the Company 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 Company TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating)) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (Ciii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading trading, or maximum ranges for prices for securities have been required, on such exchange, or ; (v) any suspension of trading of any securities of the Company Issuer or TILC or any of its affiliates on any exchange or in the over-the-counter over‑the‑counter market; (Dvi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (Eviii) any attack on, outbreak or escalation of major hostilities in which or act of terrorism involving the United States is involvedStates, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of CSFBCthe Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered SecuritiesNotes.
(c) There shall exist at and as of the Closing Date no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under any Transaction Agreement as in effect or as in draft form at the Closing Date.
(d) The Initial Purchasers shall have received an opinionopinions, dated the Closing Date, of Simpson(i) ▇▇▇▇▇▇ Price P.C., Thacher & 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 “▇▇▇▇▇▇▇▇▇ Rule”;
(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, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, Holdings and the CompanyTILC or any of their respective subsidiaries, substantially would individually or in the form of Exhibit B.
(e) The Initial Purchasers shall aggregate have received an opiniona Material Adverse Effect, dated or would materially and adversely affect the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company substantially in the form of Exhibit C.
(f) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation ability of the Issuer or TILC to perform their respective obligations under the CompanyIndenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(viii) The execution, delivery and performance of the Indenture, the validity other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and the issuance of the Offered Securities, the Offering Circular, the exemption from registration for the offer Notes and sale of the Offered Securities Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(ix) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(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 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 CSFBC may requireby this Agreement, and to register the Issuer and Offered Notes under the Company shall have furnished 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;
(gxii) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer, Chairman of the Americas or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties made by the Issuer and Holdings with respect to the Company in this Agreement are true and correct and that, subsequent to the respective date of the most recent financial statements in the Preliminary Offering DocumentCircular 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 financial condition“The Leases”, business“TILC”, properties or results of operations “The Servicer”, “Description of the Company 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 Offering Document or as described in such certificate.
(h) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(i) The Issuer, Holdings Offered Notes and the Trustee shall have entered into the Indenture and you shall have received counterpartsIndenture”, conformed insofar as executed, thereof.
(j) The Issuer and Holdings shall have entered into the Registration Rights Agreement and you shall have received counterparts, conformed as executed, thereof.
(k) The Issuer and Holdings shall have entered into an escrow agreement with the Escrow Agent and, on the Closing Date, will deposit the Escrowed Funds with the Escrow Agent.
(l) The Offered Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating they purport to trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer shall have provided to each summarize certain terms of the Initial Purchasers Offered Notes and counsel to the Initial Purchasers copies applicable Transaction Documents, constitute a fair summary of all Transaction Documents executed and delivered on or prior to such date (and, to the extent available, drafts of Transaction Agreements provisions purported to be executed on the closing date of the Merger, if later), including but not limited to legal opinions relating to the Transactions. CSFBC may waive 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)