Conditions of the Obligations of the Initial Purchasers. The obligation of the several Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Issuer and Guarantors made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder in all material respects and to the following additional conditions precedent: (a) The Initial Purchasers shall have received a customary “comfort letter”, dated the date of this Agreement, of Ernst & Young LLP (“E&Y”), in form and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth in the General Disclosure Package. (b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries has been placed on negative outlook, (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial Purchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, (v) any banking moratorium declared by U.S. federal or New York authorities, (vi) any major disruption of settlements of securities, payment or clearance services in the United States, or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of 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 sale of and payment for the Offered Securities. (d) The Initial Purchasers shall have received opinions, dated the Closing Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers. (e) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇ & Gage LLP, Missouri counsel for the Issuer, in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers. (f) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers. (g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers. (h) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer, the validity of the Offered Securities, the Final Offering Memorandum and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate. (j) The Initial Purchasers shall have received a letter, dated the Closing Date, from E&Y that meets the requirements of subsection (a) of this Section. (k) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture. (l) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information as they may reasonably request. (m) All agreements set forth in the blanket representation letter of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. The Initial Purchasers may in their sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Issuer and the Guarantors Company herein (as of the date hereof and as of the though made on such Closing Date), to the accuracy of the statements of Company officers of the Issuer and Guarantors made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors Company of their its obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The Initial Purchasers Representatives shall have received a customary “comfort letter”, addressed to the Initial Purchasers, dated the date of this Agreementhereof, of Ernst & Young PricewaterhouseCoopers LLP (“E&Y”), in form confirming that they are an independent registered public accounting firm within the meaning of the Act and substance reasonably satisfactory the applicable published Rules and Regulations thereunder and stating to the Initial Purchasers concerning certain effect that:
(i) in their opinion the financial information statements incorporated by reference in the Offering Memorandum comply as to form in all material respects with respect to Holdings the applicable sections of Regulation S-X;
(ii) they have read the minutes of the 2010 meetings of the stockholders, the Board of Directors, Nominating and Corporate Governance Committee, Audit Committee, and Special Committee of the Board of Directors of the Company and its subsidiaries as set forth in the General Disclosure Packageminute books at March 24, 2010, and have been advised by the officials of the Company that the minutes of all such meetings through that date were set forth therein (except for such minutes as set forth therein which were not approved in final form, for which they received drafts, and which drafts officials of the Company represented include all substantive actions taken at such meeting), and have carried out other procedures to March 24, 2010 (their work not having extended to March 25, 2010), but the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and would not necessarily reveal matters of significance with respect to the comments in the following paragraph (iv), so they make no representations as to the sufficiency of the foregoing procedures for the purposes of those receiving the letter;
(iii) they have inquired of certain officials of the Company who have responsibility for financial and accounting matters whether (A) at March 24, 2010 there was any change in the capital stock or increase in long-term debt of the Company and subsidiaries consolidated as compared with amounts shown in the January 3, 2010 consolidated balance sheet incorporated by reference in the Offering Memorandum, or (B) for the period from January 4, 2010 to March 24, 2010, there were any decreases, as compared with the corresponding period in the preceding year, in total revenue, and on the basis of these inquiries and their reading of the minutes as described in paragraph (iii) above, nothing came to their attention that caused them to believe that there was any such change, increase or decrease, except in all instances for changes, increases or decreases, that the Offering Memorandum discloses have occurred or may occur, except that (C) capital stock increased by approximately $371,000 due to the exercise of employee stock options and vesting of restricted stock units, and (D) the carrying amount of long-term debt increased by $5,436,000 due to the accretion of debt discount.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, ; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries Company has been placed on negative outlook, ; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, ; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum or maximum prices for trading on such exchange, ; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. federal Federal or New York authorities, ; (vivii) any major disruption of settlements of securities, payment securities or clearance services in the United States, States or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United StatesStates or the Philippines, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities.
(dc) The Initial Purchasers Representatives shall have received opinionsan opinion, dated the such Closing Date, of ▇▇▇▇▇ Day, Weisscounsel for the Company, Rifkindas to the matters described in Annex B.
(d) The Representatives shall have received (i) an opinion of Mourant du Feu & Jeune, Cayman Islands counsel for the Company, substantially in the form attached as Annex C and (ii) an opinion of ▇▇▇▇▇▇▇ Boss ▇▇▇▇▇ ▇▇, Swiss counsel for the Company, as to the matters described in Annex D.
(e) The Representatives shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇ & Gage LLP, Missouri counsel for the Issuer, in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the such Closing Date, with respect to the incorporation of the IssuerCompany, the validity of the Offered SecuritiesSecurities delivered on such Closing Date, the Final Offering Memorandum and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers Representatives may require, and the Issuer Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(if) The Initial Purchasers Representatives shall have received a certificate, dated the such Closing Date, of the President Chief Executive Officer or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor Company in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that that: the representations and warranties of the Issuer and the Guarantors Company in this Agreement are true and correct, that ; the Issuer and the Guarantors have Company has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the such Closing Date, and that; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer Company and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(jg) The Initial Purchasers Representatives shall have received a letter, dated the such Closing Date, from E&Y that of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(kh) The Issuer On or prior to the date of this Agreement, the Representatives shall have received lock-up letters substantially in the form attached as Annex A from the persons listed in Schedule C, except as agreed upon by the Company and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(l) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information as they may reasonably request.
(m) All agreements set forth in the blanket representation letter of the Issuer to DTC relating Representatives prior to the approval date of the Offered Securities by DTC for “book-entry” transfer shall have been complied withthis Agreement. The Issuer Company will furnish the Initial Purchasers Representatives with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers Representatives reasonably requestrequests. The Initial Purchasers Representatives may in their its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Sources: Purchase Agreement (Sunpower Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer and Company herein at the Guarantors herein as of the date hereof and as of Execution Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of Company officers of the Issuer and Guarantors made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors Company of their its obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a customary “comfort letter”, dated On or prior to the date of this Agreement, the Representatives shall have received a letter, dated the date of delivery thereof, of Ernst & Young LLP (“E&Y”)Young, in form LLP, confirming that they are independent public accountants within the meaning of the Act and substance reasonably satisfactory the applicable published Rules and Regulations thereunder and stating to the Initial Purchasers concerning certain effect that:
(i) in their opinion the financial statements and any schedules and any summary of earnings examined by them and included in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included in the Offering Memorandum;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, and any summary of earnings included in the Offering Memorandum do not comply as to form in all material respects with respect the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to Holdings such unaudited financial statements and its subsidiaries summary of earnings for them to be in conformity with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in the Offering Memorandum, the unaudited consolidated net sales, net operating income, net income and net income per share amounts or other amounts constituting such "capsule" information and described in such letter do not agree with the corresponding amounts set forth in the General Disclosure Packageunaudited consolidated financial statements or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of the such letter, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net assets, as compared with amounts shown on the latest balance sheet included in the Offering Memorandum; or
(D) for the period from the closing date of the latest income statement included in the Offering Memorandum to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Offering Memorandum, in consolidated net sales, net operating income or net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (C) and (D) above for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur or which are described in such letter;
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Memorandum (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Offering Memorandum shall be deemed included in the Offering Memorandum for purposes of this subsection.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this AgreementExecution Time, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including any Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities, ; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries Company by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries has been placed on negative outlook, ); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial Purchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (viv) any banking moratorium declared by U.S. federal Federal or New York authorities, (vi) authorities and any major disruption of settlements of securities, payment securities or clearance services in the United States, ; or (viiv) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial Purchasers, including the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities.
(dc) The Initial Purchasers shall have received opinions, dated the Closing Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers Representatives shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇ & Gage of Coudert Brothers LLP, Missouri counsel for the IssuerCompany, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.Offering Memorandum;
(fii) The Initial Purchasers shall have received an opinion, dated the Closing Date, from Each of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇. and Grolier Incorporated has been duly incorporated and is validly existing as a corporation in good standing under the laws of its state of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors' qualifying shares and except as otherwise set forth in the Offering Memorandum) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) This Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company and the Registration Rights Agreement constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(iv) The Indenture under which the Securities are issued has been duly authorized, executed and delivered by the Company and constitute, and the Securities have been duly authorized and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers, will have been duly executed and delivered by the Company and will constitute, valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Securities conform in all material respects to the description thereof contained in the Offering Memorandum;
(v) No consent, approval, authorization or order of, or filing with, any New York or United States federal governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture, as the case may be, in connection with the issuance or sale of the Securities by the Company, except such as will be obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities laws;
(vi) The execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Indenture and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any New York or United States Federal statute or the General Corporation Law of Delaware, any rule, regulation or order of any New York or United States Federal governmental agency or body or any court, having jurisdiction over the Company or any of its Material Subsidiaries or any of their properties, or any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or a Material Subsidiary is a party or by which the Company is bound or to which any of the properties of the Company or any of its Material Subsidiaries is subject, or the charter or by-laws of the Company, except for any breaches or violations that will not have a Material Adverse Effect; and the Company has full corporate power and authority to authorize, issue and sell the Securities as contemplated by this Agreement;
(vii) ▇▇▇▇▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇ LLP. is the registered owner of the trademark "Scholastic"; to the best knowledge of such counsel, Texas counsel for neither the IssuerCompany nor any of its Material Domestic Subsidiaries has received any notice of infringement of or conflict with (or knows of any such infringement or conflict with) asserted rights of others with respect to such trademark, other than such infringements or conflicts that would not, individually or in the form of Exhibit D hereto aggregate, have a Material Adverse Effect on the business conducted or proposed to be conducted by the Company and reasonably acceptable to its Material Domestic Subsidiaries as described in the Initial Purchasers.Offering Memorandum;
(hviii) The Initial Purchasers Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act required to be registered as such; and
(ix) The descriptions in the Offering Memorandum of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown. In addition, such counsel shall have received from Cravathstate in such opinion that during the course of the preparation of the Offering Memorandum, Swaine & ▇▇▇▇▇ LLPthey reviewed the Offering Memorandum, participated in conferences with representatives of the Company, its accountants and with representatives of and counsel for the Initial Purchasers, such opinion or opinionsat which the contents of the Offering Memorandum and related matters were discussed, dated and advised the Closing Date, with respect Company as to the incorporation requirements of the Issuer, Act and the validity applicable published rules and regulations thereunder. Such counsel shall state that between the date of the Offered Securities, the Final Offering Memorandum and the General Disclosure Packagetime of delivery of their letter, the exemption from registration for the offer and sale they have participated in further conferences with representatives of the Offered Securities by the Issuer to the Initial Purchasers Company, its accountants and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(j) The Initial Purchasers shall have received a letter, dated the Closing Date, from E&Y that meets the requirements of subsection (a) of this Section.
(k) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(l) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information as they may reasonably request.
(m) All agreements set forth in the blanket representation letter of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. The Initial Purchasers may in their sole discretion waive on behalf representatives of the Initial Purchasers compliance with (and their counsel), at which the contents of certain portions of the Offering Memorandum and related matters were discussed, and they reviewed certificates of certain officers of the Company and letters from the Company's independent accountants. Although such counsel may state that they are not passing upon or assuming any conditions responsibility for the accuracy, completeness or fairness of any of the statements made in the Offering Memorandum, on the basis of the information which they gained in the course of rendering the services referred to above, considered in light of such counsel's understanding of the obligations of applicable law and the experience such counsel has gained through such counsel's practice in this field, they advise the Initial Purchasers hereunderthat nothing which has come to the attention of such counsel in the course of such review has caused them to believe that the Offering Memorandum contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, such counsel may state that they are not expressing any opinion or belief as to the financial statements or other financial or related statistical data contained in the Offering Memorandum or the material incorporated therein by reference. Such counsel may also rely on opinions of other counsel as to matters of law other than New York law, the Delaware General Corporation Law and the federal laws of the United States.
Appears in 1 contract
Sources: Purchase Agreement (Scholastic Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Securities Notes on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Issuer Issuers and each of the Guarantors herein herein, in the case of representations and warranties which are qualified as to materiality, and to the accuracy in all material respects of the date hereof representations and as warranties on the part of the Closing DateIssuers and each of the Guarantors herein, in the case of representations and warranties that are not so qualified, to the accuracy in all material respects of the statements of each of the officers of the Issuer Issuers and each of the Guarantors made pursuant to the provisions hereof, to the performance in all material respects by the Issuer Issuers and each of the Guarantors of their respective obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The Initial Purchasers Representative shall have received a customary “comfort letter”, dated letter or letters from PricewaterhouseCoopers LLP at the date of this Agreement, of Ernst & Young LLP (“E&Y”), hereof in form and substance reasonably satisfactory to the Initial Purchasers concerning Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information with respect to Holdings and its subsidiaries set forth contained or incorporated by reference in the General Disclosure PackagePackage and the Final Offering Memorandum, and a letter or letters from PricewaterhouseCoopers LLP to be delivered at the Closing Date reaffirming the statements made in each such letter or letters, except that the inquiries and procedures specified therein shall have been carried out to a specified date not more than three business days prior to the Closing Date.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) except as set forth in the General Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto on or after the date of this Agreement) any change, or any development or event involving a prospective change, in the condition (financial or other)condition, business, properties properties, management, prospects or results of operations of Holdings Holdings, the Company and its subsidiaries taken as one enterprise enterprise, which, in the reasonable judgment of the Initial Purchasers, Representative is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, Notes; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries Issuers by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(Funder Section 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries Issuers (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries has Issuers have been placed on negative outlook, ; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial PurchasersRepresentative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered SecuritiesNotes, whether in the primary market or in respect of dealings in the secondary market, ; (iv) any material suspension or material limitation of trading in securities generally on the The New York Stock Exchange or the Nasdaq Stock Market, or any setting of minimum prices for trading on such exchangeexchanges, or any suspension of trading of any securities issued or guaranteed by Holdings or the Issuers on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. federal Federal or New York authorities, ; (vi) any major disruption of settlements of securities, payment securities or clearance services in the United States, ; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any change in financial markets or any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the Initial Purchasers, Representative the effect of any such attack, outbreak, escalation, act, change, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered SecuritiesNotes.
(c) No event or condition of a type described in Section 1(r) hereof shall have occurred or shall exist, which event or condition is not described in the General Disclosure Package (excluding any amendment or supplement thereto) and the Final Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the Closing Date, on the terms and in the manner contemplated by this Agreement, the General Disclosure Package and the Final Offering Memorandum.
(d) The Representative shall have received an opinion, a tax opinion and a negative assurance letter, dated the Closing Date and addressed to the Initial Purchasers Purchasers, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Issuers and the Guarantors, substantially in the forms of Exhibit A-1 and Exhibit A-2 attached hereto.
(e) The Representative shall have received an opinion including a negative assurance letter, dated the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Corporate Secretary of the Issuers, substantially in the form of Exhibit B attached hereto.
(f) The Representative shall have received opinions, dated the Closing Date, of local counsel in Florida and Michigan, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C.
(g) The Representative shall have received from ▇▇▇▇, Weiss, Rifkind, ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇ & Gage LLP, Missouri counsel for the Issuer, in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date, with respect to the incorporation of the Issuer, the validity of the Offered SecuritiesNotes, the Final Offering Memorandum and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities Notes by the Issuer Issuers to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers Representative may reasonably require, and the Issuer Issuers and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Issuers and the Guarantors shall deliver to the Representative, among other documents and certificates as the Representative shall reasonably request including certificates of good standing from the jurisdiction of incorporation or organization of each such entity, and certificates of good standing in such jurisdictions as the Representative reasonably requests, Secretary’s Certificates, dated the Closing Date, reasonably satisfactory to the Representative which shall include the following documents with respect to the Issuers and each of the Guarantors: (i) certificates of incorporation or organization, (ii) by-laws or comparable organizational documents, (iii) resolutions and minutes of the meetings of the Board of Directors of each entity and certain committees thereto, or comparable documents, in each case, relating to the Transaction Documents, (iv) incumbency certificates listing persons authorized to execute each of the Transaction Documents, and (v) in the case of the Issuers, true, correct and complete copies of the executed Global Securities.
(i) The Initial Purchasers Representative shall have received a certificatecertificate or certificates, dated the Closing Date, of the President or any Vice President and a principal financial or accounting an executive officer of the Issuer Issuers and of each Guarantor Guarantor, with specific knowledge about the Issuers’ or such Guarantor’s financial matters, satisfactory to the Representative, in which such officersofficer, to the best of their such officer’s knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representation set forth in Section 1(a) hereof is true and correct, that the respective other representations and warranties of the Issuer Issuers and the Guarantors in this Agreement are true and correct, in the case of representations and warranties which are qualified as to materiality, and true and correct in all material respects, in the case of representations and warranties that are not so qualified, that each of the Issuer Issuers and the Guarantors have has complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the General Disclosure Package, Package (exclusive of any amendment or supplement thereto on or after the date of this Agreement) there has been no material adverse change, nor any development or event involving a prospective change, that would constitute a material adverse change, change in the condition (financial or other)condition, business, properties or results of operations of Holdings, the Issuer Company and its subsidiaries subsidiaries, taken as a whole except as set forth in or contemplated by the General Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or as described in such certificatesupplement thereto on or after the date of this Agreement).
(j) The Initial Purchasers shall have received a lettercertificates, dated the Closing Date, from E&Y that meets signed by two officers of the requirements Company who are responsible for financial and accounting matters, substantially in the form of subsection (a) of this SectionExhibit D hereto, with respect to certain financial information contained in the General Disclosure Package and the Final Offering Memorandum.
(k) The Issuer and the Guarantors Indenture shall have been duly executed and delivered by a duly authorized officer of each of the Registration Rights Agreement Issuers, the Guarantors and the IndentureTrustee, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Issuers and duly authenticated by the Trustee.
(l) The Initial Purchasers Notes shall have been furnished with wiring instructions be eligible for the application of the proceeds of the Offered Securities in accordance with this Agreement clearance and such other information as they may reasonably requestsettlement through DTC.
(m) All agreements set forth The Representative shall have received evidence reasonably satisfactory to it that, substantially simultaneously with the purchase of the Notes by the Initial Purchasers, the Company will apply the net proceeds thereof as described in the blanket representation letter General Disclosure Package and the Final Offering Memorandum under the heading “Use of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied withproceeds”. The Issuer Issuers will furnish the Initial Purchasers Representative with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers Representative reasonably requestrequests. The Initial Purchasers Representative may in their its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation of the several Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Issuer and Guarantors made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder in all material respects and to the following additional conditions precedent:
(a) The Representatives, on behalf of the Initial Purchasers Purchasers, shall have received a customary “comfort letter”, dated the date of this Agreement, of Ernst & Young LLP (“E&Y”)KPMG LLP, in form and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth in the General Disclosure Package.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, ; (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F436(g) under the Exchange Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries has been placed on negative outlook, ; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including Credit Suisse, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, ; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, ; (v) any banking moratorium declared by U.S. federal Federal or New York authorities, ; (vi) any major disruption of settlements of securities, payment or clearance services in the United States, ; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Initial PurchasersPurchasers including Credit Suisse, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, of ▇P▇▇▇, Weiss, Rifkind, ▇W▇▇▇▇▇▇ & ▇G▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, Date from ▇L▇▇▇▇▇▇ & Gage LLPG▇▇▇ ▇.▇., Missouri counsel for the Issuer, Issuer in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, Date from ▇M▇▇▇▇▇▇▇ & ▇M▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, Issuer in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, Date from ▇A▇▇▇▇ & ▇R▇▇▇▇ LLP, Texas counsel for the Issuer, Issuer in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers.
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, certifying all information for the years 2003 and 2004 in Item 6. Selected Financial Data of the annual report on Form 10-K for the fiscal year ended 2007 for Holdings.
(i) The Initial Purchasers shall have received from Cravath, Swaine & ▇M▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer, the validity of the Offered Securities, the Final Offering Memorandum Circular and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ij) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(jk) The Initial Purchasers shall have received a letter, dated the Closing Date, from E&Y that of KPMG which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three business days prior to the Closing Date for the purposes of this subsection and except it shall refer to financial information with respect to Holdings and its subsidiaries in the Final Offering Circular.
(kl) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(lm) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information as they may reasonably request.
(mn) The Offered Securities shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the blanket representation letter of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with.
(o) On or prior to the Closing Date, the Credit Agreement, the Collateral Agreement, the Intercreditor Agreement and the other Security Documents shall have been entered into by the parties thereto, and the Notes Collateral Agent and the Initial Purchasers shall have received a copy of each of the duly executed Security Documents and the Credit Agreement.
(p) On or prior to the Closing Date, all documents and instruments, including UCC financing statements, required by law or reasonably requested by the Notes Collateral Agent to be filed, registered or recorded to create liens intended to be created by the Indenture and the Security Documents and perfect such liens to the extent required by, and with the priority required by, the Collateral Agreement and the Intercreditor Agreement, shall have been filed, registered or recorded or delivered to the Notes Collateral Agent.
(q) All filing fees, taxes and other amounts payable in connection with filings, recordings, registrations and other actions referred to in Section 7(p) shall have been paid or payment by the Issuer provided for to the reasonable satisfaction of the Notes Collateral Agent.
(r) On or prior to the Closing Date, the Initial Purchasers shall have received the results of lien searches, conducted by the lien search service previously identified to counsel for the Representatives or another search service reasonably satisfactory to the Representatives, and the Representatives shall be satisfied that no material liens are outstanding on the property or assets of the Issuer and the Guarantors, other than any such liens (i) which are permitted under the Indenture or (ii) as to which the Representatives have received documentation reasonably satisfactory to it evidencing the termination of such liens.
(s) On or prior to the Closing Date, the Initial Purchasers shall have received a completed certificate in the form attached to the Collateral Agreement (the “Perfection Certificate”) to be dated as of the Closing Date, executed by an executive officer of the Issuer, together with all attachments contemplated thereby, which shall be correct and complete as of the Closing Date. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. The Initial Purchasers Credit Suisse may in their its sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchasers. The obligation respective obligations of the several Initial Purchasers to purchase and pay for the Offered Securities will be hereunder are subject to the accuracy accuracy, when made and again on the Closing Date (as if made again on and as of such date), of the representations and warranties on the part of the Issuer Company contained herein except to the extent such representations and the Guarantors herein as warranties expressly relate to an earlier date (in which case such representations and warranties of the date hereof Company contained herein shall be true and correct in all material respects on and as of the Closing Date, to the accuracy of the statements of officers of the Issuer and Guarantors made pursuant to the provisions hereofsuch earlier date), to the performance by the Issuer and the Guarantors Company of their its obligations hereunder in all material respects required to be performed by the Company at or prior to the Closing Date, and to each of the following additional terms and conditions precedentcompliance with which shall be determined by the Initial Purchasers in their sole discretion:
(a) The Offering Memorandum shall have been printed and copies made available to the Initial Purchasers not later than 10:00 a.m., New York City time, on or about September 12, 2012, or at such later date and time as the Initial Purchasers may approve in writing.
(b) The Notes shall have received a customary “comfort letter”been rated by the Rating Agencies as specified in the Preliminary Offering Memorandum and such ratings shall not have been rescinded.
(c) On or after the date hereof (i) no downgrading shall have occurred in the rating of the Notes by any of the Rating Agencies and (ii) none of the Rating Agencies shall have informed the Company or the Initial Purchasers or publicly announced that it has under surveillance or review with negative implications its rating of the Notes.
(d) Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP shall have furnished to the Initial Purchasers its written opinion, as special New York counsel to ▇▇▇▇▇▇ and the Company, addressed to the Initial Purchasers and dated the date of this Agreement, of Ernst & Young LLP (“E&Y”)Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information with respect to Holdings and its subsidiaries set forth in the General Disclosure PackagePurchasers.
(be) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries has been placed on negative outlook, (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial Purchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, (v) any banking moratorium declared by U.S. federal or New York authorities, (vi) any major disruption of settlements of securities, payment or clearance services in the United States, or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of 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 sale of and payment for the Offered Securities.
(d) The Initial Purchasers shall have received opinions, dated the Closing Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & Pillsbury ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable to the Initial Purchasers.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇ ▇▇▇▇▇▇▇ & Gage LLP, Missouri counsel for the Issuer, in the form of Exhibit B hereto and reasonably acceptable LLP shall have furnished to the Initial Purchasers.
Purchasers its written opinion with respect to (fi) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇“true-sale” of the Engines and Engine Interests contemplated by the Operative Documents and (ii) with respect to the non-consolidation of the Issuer Group Members such that in the event of a bankruptcy case involving ▇▇▇▇▇▇ & ▇as debtor under Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., a court properly presented with the facts would not grant an order consolidating the Company’s assets and liabilities or those of any other Issuer Group Member with those of ▇▇▇▇▇▇ LLCassuming that a party in interest would timely present an objection to substantive consolidation, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable addressed to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, and dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and substance reasonably acceptable satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Issuer, the validity of the Offered Securities, the Final Offering Memorandum and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Securities by the Issuer to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(j) The Initial Purchasers shall have received a letter, dated the Closing Date, from E&Y that meets the requirements of subsection . “Engine Interest” means (a) of this Sectionthe Stock in any Person, including, without limitation, a trust that owns an Engine or (b) the Person that holds, directly or indirectly, the interest referred to in clause (a) above.
(k) The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture.
(l) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information as they may reasonably request.
(m) All agreements set forth in the blanket representation letter of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. The Initial Purchasers may in their sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.
Appears in 1 contract
Sources: Note Purchase Agreement (Willis Lease Finance Corp)
Conditions of the Obligations of the Initial Purchasers. The obligation obligations of the several Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuer and the Guarantors herein as of the date hereof and as of the Closing DateIssuers herein, to the accuracy accuracy, in all material respects, of the statements of officers of the Issuer and Guarantors Issuers made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder performance, in all material respects respects, by the Issuers of its obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a customary “comfort letter”, dated the date of this Agreement, of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder (“E&Y”)"Rules and Regulations") and to the effect that:
(i) in their opinion the financial statements examined by them and included in the Offering Documents comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) at a specified date not more than three business days prior to the date of this Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at such date, there was any decrease in consolidated net current assets or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Documents; or
(B) for the period from the closing date of the latest income statement included in the Offering Documents to a specified date not more than three business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period of the previous year, in form consolidated net sales, net operating income consolidated, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (A) and substance reasonably satisfactory to the Initial Purchasers concerning certain financial information (B) above for changes, increases or decreases which are described in such letter;
(iii) in their opinion, with respect to Holdings the unaudited pro forma condensed consolidated balance sheet as of July 2, 1999, and the unaudited pro forma condensed consolidated statements of income for the year ended July 2, 1999 included in the Offering Documents, (A) the assumptions of each of the Issuer's management provide a reasonable basis for presenting the significant effects directly attributable to the transactions described in the introductory information to these unaudited pro forma condensed consolidated financial statements, (B) the related pro forma adjustments give appropriate effect to those assumptions and (C) the pro forma column reflects the proper application of those adjustments to the historical financial statement amounts in these pro forma condensed consolidated financial statements; and
(iv) on the basis of a reading of the pro forma condensed consolidated financial statements referred to in 6(a)(iii) above and inquiries of officials of the Issuers who have responsibility for financial and accounting matters about whether these unaudited pro forma condensed consolidated financial statements comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X, nothing came to their attention that caused them to believe that these unaudited pro forma condensed consolidated financial statements included in the Offering Documents do not comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X,
(v) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Documents to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Issuers and its subsidiaries set forth subject to the internal controls of the Issuers' accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in the General Disclosure Packagesuch letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(b) No stop order suspending the qualification or exemption from qualification of the Offered Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of Holdings and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Initial Purchasers, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities, (ii) any downgrading in the rating of any debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Issuer or any of its subsidiaries has been placed on negative outlook, (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as that would, in the reasonable judgment of the Initial PurchasersCSFBC, 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 (ivii)(A) any change, or any development or event involving a prospective change, in the business, assets, operations, properties, financial condition, liabilities or prospects of the Issuers and their subsidiaries taken as a whole which, in the reasonable judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of either Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities of either Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of either Issuer on any exchange or in the over-the-counter market; (vD) any banking moratorium declared by U.S. federal Federal or New York authorities, ; or (viE) any major disruption of settlements of securities, payment or clearance services in the United States, or (vii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Initial PurchasersCSFBC, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) Concurrently with or prior to the issue and sale of the Offered Securities by the Issuers, the Transactions shall be consummated on terms that conform in all material respects to the description thereof in the Offering Documents and the Initial Purchasers shall have received true and correct copies of all documents pertaining thereto and evidence reasonably satisfactory to the Initial Purchasers of the consummation thereof.
(d) Concurrently with or prior to the issuance and sale of the Offered Securities by the Issuers, the Company and Intersil Holding shall have entered into the Credit Agreement and the initial borrowings thereunder shall have occurred. The Initial Purchasers shall have received opinions, dated conformed counterparts thereof and all other documents and agreements entered into and received thereunder in connection with the closing of the Credit Agreement. There shall exist at and as of the Closing Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer, in substantially the form attached hereto as Exhibit A and reasonably acceptable Date (after giving effect to the Initial Purchaserstransactions contemplated by this Agreement and the Transactions) no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the Credit Agreement or any other Transaction Document.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇ & Gage LLP, Missouri counsel for the Issuer, in the form of Exhibit B hereto and reasonably acceptable to the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇▇▇▇ Dechert Price & ▇▇▇▇▇▇▇ LLC, Ohio counsel for the Issuer, in the form of Exhibit C hereto and reasonably acceptable to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Texas counsel for the Issuer, in the form of Exhibit D hereto and reasonably acceptable to the Initial Purchasers.
(h) The Initial Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial PurchasersIssuers and the Guarantors, to the effect that:
(i) each of the Issuers has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and corporate authority to own its properties and conduct its business as described in the Offering Circular; and each of the Issuers is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion;
(ii) each of the Company's domestic subsidiaries has been duly incorporated or formed and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, with corporate or limited liability company power and authority to own its properties and conduct its business as described in the Offering Circular; and each is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion;
(iii) all of the issued and outstanding capital stock of the Issuers and the Subsidiary Guarantors that are corporations has been duly authorized and validly issued and is fully paid and nonassessable and conforms in all material respects to the description thereof in the Offering Circular;
(iv) insofar as is known to such counsel, to the extent the Offering Circular contains summaries of statutes, legal proceedings or agreements to which any of Intersil Holding, the Company or any of its subsidiaries is a party (or provisions thereof) referred to therein, such opinion or opinionsstatements are true and correct in all material respects;
(v) the Issuers and the Subsidiary Guarantors have duly authorized the execution, dated the Closing Date, with respect to the incorporation of the Issuer, the validity delivery and performance of the Offered Securities, the Final Offering Memorandum Operative Documents and the General Disclosure Packageconsummation of the transactions contemplated thereby;
(vi) the Operative Documents constitute valid and legally binding obligations of the Issuers and the Subsidiary Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies and except that any rights to indemnity and contribution may be limited or prohibited by Federal and state securities laws and public policy considerations; the Offered Securities have been duly authorized and executed by the Issuers and conform in all material respects to the description thereof in the Offering Circular;
(vii) each of the Guaranties has been duly authorized and executed by the respective Guarantor, and, assuming the Notes have been duly authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the exemption from registration Offered Notes constitute valid and legally binding obligations of the Company and each of the Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies;
(viii) the Warrants delivered on the Closing Date (as defined herein) are convertible into shares of Class A common stock of Intersil Holding in accordance with the term of the Warrant Agreement; the shares of Class A common stock of Intersil Holding initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon such exercise and, when issued upon such exercise, will be validly issued, fully paid and nonassessable; the outstanding shares of Class A common stock of Intersil Holding have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Offering Circular; and the stockholders of Intersil Holding have no preemptive rights with respect to the Warrants or the shares of Class A common stock, except as disclosed in the Offering Circular;
(ix) assuming the accuracy of the representation and warranty of the Issuers and the Subsidiary Guarantors contained in Section 2(y) of this Agreement and the accuracy of the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the performance by any of the Issuers or Subsidiary Guarantors of its obligations under the Operative Documents or in connection with the issuance and sale of the Offered Notes Securities by the Issuers and the issuance of the Guaranties by the Guarantors, except such as have been obtained or made or as may be required under the Securities Act or the Exchange Act and the rules and regulations of the Commission thereunder with respect to the Registration Rights Agreement and the transactions contemplated thereunder and such as may be required by state securities or blue sky laws in connection with the offer and sale of the Offered Securities;
(x) the execution, delivery and performance, of the Operative Documents and the Transaction Documents by Sterling, Intersil Holding, the Company and the Subsidiary Guarantors (to the extent a party thereto) and the issuance and sale of the Offered Securities by the Issuer Issuers and compliance with the terms and provisions of the foregoing will not (A) result in a breach or violation of any of the terms and provisions of (1) any material New York or Federal statute, rule or regulation applicable to any of Intersil Holding, the Initial Purchasers Company or any Subsidiary Guarantor or (2) any order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over any of Intersil Holding, the Company, any Subsidiary Guarantor or any of their properties and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished which order is known to such counsel counsel, or, (B) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Transaction Documents listed in such documents as they request for opinion, or (C) result in a violation of the purpose charter or by-laws of enabling them to pass upon such matters.Intersil Holding, the Company or any Subsidiary Guarantor;
(ixi) The Initial Purchasers shall have received a certificateother than those already obtained or applied for, dated no consent, approval, authorization or order of, or filing with, any New York or Federal government agency or body or any New York or Federal court is required in connection with the Closing Date, consummation of the President or any Vice President and a principal financial or accounting officer of the Issuer and each Guarantor in which such officers, to the best of their knowledge and after reasonable investigation, shall state on behalf of the Issuer and the Guarantors that the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct, that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries taken as a whole except as set forth in or transactions contemplated by the General Disclosure Package Transaction Documents by ▇▇▇▇▇▇▇▇, the Issuers or as described any of the Subsidiary Guarantors except for such consents, approvals, authorizations, orders or filings the failure of which to obtain or make would not result in such certificate.a Material Adverse Effect;
(jxii) The Initial Purchasers shall have received each of the Transaction Documents has been duly authorized by each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent a letterparty thereto) and will, dated when duly executed, constitute a valid and legally binding obligation of each of Sterling, the Closing DateIssuers and the Subsidiary Guarantors (to the extent a party thereto) and is enforceable in accordance with its terms, from E&Y that meets subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally, general equitable principles and the requirements discretion of subsection (a) of this Section.the courts in granting equitable remedies;
(kxiii) The Issuer and except as disclosed in the Guarantors shall Offering Documents, insofar as is known to such counsel, there are no actions, suits or proceedings threatened or pending against Intersil Holding, the Company or any of its subsidiaries or any of their respective properties that if determined adversely to Intersil Holding, the Company or any such subsidiary would be reasonably likely to have executed and delivered the Registration Rights Agreement and the Indenture.a Material Adverse Effect;
(lxiv) The Initial Purchasers shall have been furnished with wiring instructions for neither of the Issuers nor any of the Subsidiary Guarantors is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or a closed-end investment company required to be registered, but not registered, thereunder; and neither of the Issuers nor any of the Subsidiary Guarantors is or, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds of the Offered Securities in accordance with this Agreement and such other information thereof as they may reasonably request.
(m) All agreements set forth described in the blanket representation letter of the Issuer to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer shall have been complied with. The Issuer will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents required hereunder as the Initial Purchasers reasonably request. The Initial Purchasers may in their sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.Offering Documents
Appears in 1 contract
Sources: Purchase Agreement (Intersil Corp)