Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers confirming that they are independent public accountants under Rule 101 of the American Institute of Certified Public Accountants Code of Professional Conduct, and its interpretations and rulings, and to the effect that: (i) In their opinion the consolidated financial statements and financial statement schedules audited by them and included in the Offering Circular comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (the “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. 100, Interim Financial Information, on the unaudited financial statements included in the Offering Circular; (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 included in the Offering Circular do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles; (B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular ; or (C) for the period from the closing date of the latest income statement included in the Offering Circular 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 in consolidated net sales, net operating income or consolidated net income or total income; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular disclose have occurred or may occur or which are described in such letter; and (iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular (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. (b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of 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 Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of 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 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; (v) any banking moratorium declared by U.S. Federal, New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of 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 sale of and delivery and payment for the Offered Securities. (c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, that: (i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; (ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act; (iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder; (iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws; (v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes; (vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution; (vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles; (viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; (ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and (x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above. (d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that: (i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company; (ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors; (iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors; (iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; (v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor; (vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; (vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect; (viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and co
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and each Guarantor herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company and each Guarantor made pursuant to the provisions hereof, to the performance by the Company and each Guarantor of its their respective obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers Ernst & Young LLP confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Document comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (the “related published Rules and Regulations”)Regulations that would be applicable if the Offering were registered under the Securities Act;
(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. 10071, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument and in the Exchange Act Reports;
(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 included in the Offering Circular Document or in the Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 this Agreement, there was any change in the consolidated capital stock or any increase in short-term indebtedness or long-term debt indebtedness 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 current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular Document 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 year, in total consolidated net salesrevenues, gross profit, net operating income, consolidated income before extraordinary items or consolidated net income or total income; except in all cases set forth in clauses (BA) and (CB) above for changes, increases or decreases which the Offering Circular disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document (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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Representatives Purchasers, including the Representative, is material and adverse and makes it impractical impracticable or inadvisable to proceed with completion of the offering Offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of 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 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; or (viv) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the RepresentativesPurchasers, including the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering Offering or sale of and delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects Concurrently with or prior to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the GuarantorsCompany, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has Amendment shall have been duly authorized, executed and delivered by Holdings, United Rentals of Canada, Inc. and the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms Amendment shall conform in all material respects to the description thereof in the Offering Circular; Document. The Amendment shall be in full force and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer effect and the Indenture, the guarantee Purchasers shall have received true and correct copies of each Guarantor endorsed thereon will constitute the valid all documents pertaining thereto and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter evidence reasonably satisfactory to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof effectiveness thereof. There shall exist at and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as Date (after giving effect to the financial statements transactions contemplated by this Agreement and the Amendment) no condition that would constitute a default (or other financial data contained in an event that with notice or lapse of time, or both, would constitute a default) under the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) aboveCredit Agreement.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of (i) ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantors, to the effect set forth in Annex I hereto, and (ii) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantors, to the effect set forth in Annex II hereto.
(e) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇, General Counsel counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Offered Securities, the Offering Document, the exemption from registration for the offer and sale of the Offered Securities by the Company to the several Purchasers and the resales by the several Purchasers as contemplated hereby and other related matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The 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 each of the Company and the Guarantors in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company or the applicable Guarantor (as the case may be) in this Agreement are true and correct, that the Company or the applicable Guarantor (as the case may be) has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that:, subsequent to the dates of the most recent consolidated financial statements of Holdings in the Offering Document there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(g) The Purchasers shall have received a letter, dated the Closing Date, of Ernst & Young LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(h) The Company, the Guarantors and the Trustee shall have entered into the Indenture, and the Purchasers shall have received an executed counterpart thereof.
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees Purchasers shall have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each received a counterpart of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities that shall have been executed by a duly authorized by officer of the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) . The Company is an existing corporation will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. The Representative may in good standing under the laws its sole discretion waive on behalf of the State of Nevada, Purchasers compliance with corporate power and authority any conditions to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary obligations of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coPurchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and each Guarantor herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company and each Guarantor made pursuant to the provisions hereof, to the performance by the Company and each Guarantor of its their respective obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this AgreementClosing Date, of PricewaterhouseCoopers Ernst & Young LLP confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Document comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (the “related published Rules and Regulations”)Regulations that would be applicable if the Offering were registered under the Securities Act;
(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. 10071, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument and in the Exchange Act Reports;
(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 included in the Offering Circular Document or in the Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 this Agreement, there was any change in the consolidated capital stock or any increase in short-term indebtedness or long-term debt indebtedness 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 current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular Document 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 year, in total consolidated net salesrevenues, gross profit, net operating income, consolidated income before extraordinary items or consolidated net income or total income; except in all cases set forth in clauses (BA) and (CB) above for changes, increases or decreases which the Offering Circular disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document (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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Representatives Purchasers, including the Representative, is material and adverse and makes it impractical impracticable or inadvisable to proceed with completion of the offering Offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of 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 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; or (viv) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the RepresentativesPurchasers, including the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering Offering or sale of and delivery and payment for the Offered Securities.
(c) There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement) 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.
(d) The Purchasers shall have received an opinionopinions, dated as of the Closing Date, of (i) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, to the effect set forth in Annex I hereto, and the issuance and sale of the Offered Securities by (ii) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company and the issuance of the Guarantees by the Guarantors, to the application of the net proceeds therefrom effect set forth in Annex II and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;Annex III hereto.
(vie) The Registration Rights Agreement has been duly authorizedPurchasers shall have received from Cravath, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by Swaine & ▇▇▇▇▇ LLP counsel for the Purchasers) constitutes a valid and legally binding obligation of , such opinion or opinions, dated the Company and of the Guarantors enforceable in accordance with its termsClosing Date, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities will constitute valid and legally binding obligations incorporation of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the validity of the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in Securities, the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the IndentureDocument, the guarantee of each Guarantor endorsed thereon will constitute exemption from registration for the valid offer and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) and the resales of the Offered Securities by the several Purchasers in the manner as contemplated hereby and other related matters as the Representative may require, and the Company shall have furnished to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, documents as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel request for the Purchasers; and (ii) as purpose of enabling them to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) abovepass upon such matters.
(df) The Purchasers shall have received an opiniona certificate, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed President or any Vice President and delivered by a principal financial or accounting officer of each of the Company and each Guarantor; the Guarantees have been duly authorizedGuarantors in which such officers, executed to the best of their knowledge after reasonable investigation, shall state that the representations and delivered by warranties of the Company or the applicable Guarantor; Guarantor (as the Offered Securities have been duly authorizedcase may be) in this Agreement are true and correct, executedthat the Company or the applicable Guarantor (as the case may be) has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, issued and delivered by that, subsequent to the Company;
(ii) This Agreement dates of the most recent consolidated financial statements of Holdings in the Offering Document there has been duly authorizedno material adverse change, executed and delivered by nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by each the Offering Document or as described in such certificate.
(g) The Purchasers shall have received a counterpart of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities that shall have been executed by a duly authorized by officer of the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) . The Company is an existing corporation will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. The Representative may in good standing under the laws its sole discretion waive on behalf of the State of Nevada, Purchasers compliance with corporate power and authority any conditions to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary obligations of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coPurchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance performance, in all material respects, by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers Deloitte & Touche USA LLP confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) In that in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Preliminary Offering Circular and the Final Offering Circular comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (the “related published Rules and Regulations”).
(b) The Purchasers shall have also received a 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 and to the effect that:
(i) in their opinion the financial statements examined by them and included in the Preliminary Offering Circular and the Final Offering Circular 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) 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. 100, Interim Financial Information, on the unaudited financial statements included in the Preliminary Offering Circular and the Final Offering Circular;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the CompanyTD Group, inquiries of officials of the Company TD Group who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) (x) the unaudited financial statements included in the Preliminary Offering Circular and the Final Offering Circular do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or (y) any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principlesGAAP;
(B) the unaudited consolidated net sales, net operating income and net income amounts for the 26-week periods ended April 1, 2006 and April 2, 2005 included in the Preliminary Offering Circular and the Final Offering Circular do not agree with the amounts set forth in the unaudited consolidated financial statements for those same periods 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 this Agreement, (i) there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company TD Group 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 current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Final Offering Circular Circular; or
(CD) for the period from the closing date of the latest income statement included in the Final Offering Circular 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 Final Offering Circular, in consolidated net sales, net operating income income, or consolidated net income or total incomein the ratio of earnings to fixed charges; except in all cases set forth in clauses (B), (C) and (CD) above for changes, increases or decreases which the Offering Circular disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Preliminary Offering Circular, each other document comprising any part of the General Disclosure Package, the Final Offering Circular and each item of Supplemental Marketing Material (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 TD Group and its subsidiaries subject to the internal controls of the CompanyTD Group’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.
(bc) 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 otherwiseother), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Representatives Banc of America and Credit Suisse, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook, except in each case for any of the foregoing relating solely to any 8 3/8% Senior Subordinated Notes that are not tendered in connection with the Tender Offer; (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 RepresentativesBanc of America and Credit Suisse, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum prices for trading on such exchange, or ; (v) any suspension of trading of any securities of the Company TD Group on any exchange or in the over-the-counter market; (vvi) any banking moratorium declared by U.S. Federal, Federal or New York authorities; (vivii) any major disruption of settlements of securities or clearance services in the United States or States; (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United StatesStates or, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the RepresentativesBanc of America and 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 delivery and payment for the Offered Securities.
(cd) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P., LLP or other local counsel for to the Company, as applicable, substantially to the effect that:
(i) Each of the Company and TD Group 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 General Disclosure Package, except where the failure to have such power and authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and each of the Company and TD Group is duly qualified to do business as a foreign corporation in good standing in the jurisdictions, if any, listed on a schedule to such opinion;
(ii) Each subsidiary of the Company listed on Schedule D hereto has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package, except where the failure to have such power and authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in the jurisdictions listed on a schedule to such opinion; all of the issued and outstanding capital stock of each such subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is, to the knowledge of such counsel, owned free from liens, encumbrances and defects, except for liens, encumbrances and defects on the capital stock of the subsidiaries (direct and indirect) of the Company granted in favor of the lenders under or related to the Credit Agreement or granted in favor of the lenders under or related to the New Credit Agreement.
(iii) The IndentureIndenture has been duly authorized, the Guarantees executed and delivered; the Offered Securities have been duly authorized, executed, authenticated, issued and delivered, are consistent in all material respects with the information in the General Disclosure Package and conform in all material respects to the description thereof contained in the Final Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors 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 generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement Agreement, and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the GuarantorsCompany, except (i) such as may be required under state securities or blue sky laws except for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring effective the Exchange Offer Registration Statement or or, if required, the Shelf Registration Statement effectiveor where the failure to obtain or make any of the foregoing would not, (ii) as may individually or in the aggregate, reasonably be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant expected to federal or state securities or “blue sky” laws of foreign securities lawshave a Material Adverse Effect;
(v) To our knowledge, except as set forth in the General Disclosure Package, there are no pending actions, suits or proceedings against the Company, TD Group, any of their subsidiaries or any of their respective properties in any New York or Federal court that, would individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or which are otherwise material in the context of the sale of the Offered Securities;
(vi) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by Agreement, the Company and consummation of the Guarantors, transactions herein contemplated and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities (1) any Federal or New York statute or any rule, regulation or order, in each case known to such counsel to be entered into as part customarily applicable to transactions of the Refinancing Transactions type contemplated by this Agreement or, to such counsel’s knowledge, any order, judgment or decree specifically naming the indenture governing Company or any of its subsidiaries of any governmental agency or body or any court having jurisdiction over the Company or any such subsidiary or any of their properties, (2) any agreement or instrument to which the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered TD Group or any such subsidiary is a party or by which the Company and by each or any such subsidiary is bound or to which any of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation properties of the Company or any such subsidiary is subject and which is listed on Schedule E hereto, or (3) the charter or by-laws of the Guarantors enforceable Company or any such subsidiary, except in accordance with its termsthe case of clauses (1) and (2), subject for breaches, violations and defaults that would not, individually or in the aggregate, reasonably be expected to bankruptcyhave a Material Adverse Effect, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating the Company has full power and authority to or affecting creditors’ rights generally enter into this Agreement and to general equity principles and public policy considerations with respect to any rights of indemnity or contributionconsummate the transactions contemplated hereby;
(vii) The Exchange Securities and Private Exchange Securities Such counsel have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Final Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; such counsel have no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the General Disclosure Package, as of the Applicable Time and as of the Closing Date, when considered together with the information set forth in the schedules to this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or statements, related schedules and other financial data and accounting information contained in the General Disclosure Package or the Final Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(iiviii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iiiix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities Guarantors and Private Exchange Securities have been duly authorized by will be enforceable against the Company and each of the Guarantors;
Guarantors in accordance with its terms, except that (v1) The Guarantee the enforcement thereof may be subject to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the similar laws of the State of Nevada, with corporate power general applicability relating to or affecting creditors’ rights and authority to own its properties general equity principles and conduct its business as described in the Offering Circular; (2) any rights to indemnity or contribution thereunder may be limited by federal and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the state securities laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and copublic policy considerations
Appears in 1 contract
Sources: Purchase Agreement (Transdigm Inc)
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of and the Guarantors herein on the date hereof and as of on the Closing Date, to the accuracy of the statements of officers of the Company and the Guarantors made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers Deloitte & Touche LLP in agreed form confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Document comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (the “related published Rules and Regulations”);
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants Company Accounting Oversight Board ("PCAOB") for a review of interim financial information as described in Statement of Auditing Standards No. 100PCAOB Interim Standard AU 722, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument;
(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 included in the Offering Circular Document do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net total assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular Document 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 year, in consolidated net sales, revenue or net operating income or consolidated net income or total incomein the ratio of earnings to fixed charges; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular disclose Document discloses have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document (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 '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; and
(v) they have read the unaudited pro forma financial statements included in the Registration Statements, and after inquiries with certain 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 such financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X and that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Representatives Purchasers, including CSFB, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the RepresentativesPurchasers, including CSFB, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; , (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange Exchange, or any setting of minimum 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; (vvi) any banking moratorium declared by U.S. Federal, Federal or New York authorities; (vivii) any major disruption of settlements of 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 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 RepresentativesPurchasers, including CSFB, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, that:in the form of Exhibit A hereto.
(id) The IndenturePurchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication validity of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the IndentureSecurities, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required exemption from registration for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance offer and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) and the resales of the Offered Securities by the several Purchasers in the manner as contemplated hereby and other related matters as CSFB may require, and the Company shall have furnished to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, documents as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel request for the Purchasers; and (ii) as purpose of enabling them to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) abovepass upon such matters.
(de) The Purchasers shall have received an opiniona certificate, dated as of the Closing Date, of ▇▇▇the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the dates of the most recent financial statements in the Offering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the Offering Document or as described in such certificate.
(f) The Purchasers shall have received a letter, dated the Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(g) The Offered Securities shall have been designated PORTAL securities in accordance with rules and regulations adopted by NASD relating to trading in the PORTAL market.
(h) The Credit Agreement Amendment shall have become effective and the Purchasers shall have received a fully executed copy thereof.
(i) The Representative shall have received a certificate, dated the Closing Date, from ▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to Chief Financial Officer of the Company, that:
(i) substantially in the form of Exhibit B. The Indenture has been duly authorizedCompany will furnish the Purchasers with such conformed copies of such opinions, executed certificates, letters and delivered by documents as the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each Purchasers reasonably request. CSFB may in its sole discretion waive on behalf of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by Purchasers compliance with any conditions to the Company and by each obligations of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coPurchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date Purchased Notes will be subject to the accuracy of the representations and warranties on the part of the Company Corporation herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of Corporation officers of the Company made pursuant to the provisions hereof, to the performance by the Company Corporation of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated Subsequent to the date signing of this Agreement, you shall have received letters of PricewaterhouseCoopers Coopers & Lybrand related to Baltimore Gas and Electric Company and Price Waterhouse ▇▇▇▇▇▇d to Potomac Electric Power Company, dated the Closing Date, confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional ConductAct and the 33 Act Rules and Regulations, and its interpretations and rulings, and to stating in effect that for the effect respective companies that:
(i) In their opinion opinion, the consolidated financial statements and financial statement supporting schedules audited by them and which are included in the Offering Circular company's Form 10-K ("Form 10-K"), which is incorporated by reference in the Registration Statement comply as to in form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules 33 Act Rules and regulations thereunder (Regulations and the “Exchange Act and the Exchange Act Rules and Regulations”);
(ii) they have performed On the basis of procedures specified in such letter (but not an audit in accordance with generally accepted auditing standards), including reading the minutes of meetings of the shareholders, the Board of Directors and the Executive Committee of the company since the end of the year covered by the American Institute of Certified Public Accountants for Form 10-K as set forth in the minute books through a review of interim financial information as described specified date not more than five days prior to the Closing Date, performing procedures specified in Statement of on Auditing Standards No. 10071, Interim Financial Information, on the unaudited financial statements included in the Offering Circular;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim consolidated financial statements of the Companycompany incorporated by reference in the Registration Statement, if any, and reading the latest available unaudited interim consolidated financial statements of the company, and making inquiries of certain officials of the Company company who have responsibility for financial and accounting matters and other specified proceduresas to whether the latest available financial statements not incorporated by reference in the Registration Statement are prepared on a basis substantially consistent with that of the audited consolidated financial statements incorporated in the Registration Statement, nothing came has come to their attention that has caused them to believe that:
that (A1) the any unaudited consolidated financial statements included incorporated by reference in the Offering Circular Registration Statement do not comply as to in form in all material respects with the applicable accounting requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the related published Exchange Act Rules and Regulations or any material modifications should be made to such those unaudited condensed consolidated financial statements for them to be in conformity with generally accepted accounting principles;
; (B2) at the date of the latest available balance sheet read not incorporated by such accountants, or at a subsequent specified date not more than three business days prior to reference in the date of this Agreement, Registration Statement there was any change in the capital stock or any increase stock, change 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 or decrease in consolidated net current assets (working capital) or net assets, common shareholders' equity as compared with the amounts shown on in the latest balance sheet included incorporated by reference in the Offering Circular ; or
(C) Registration Statement or for the period from the closing date of the latest income statement included incorporated by reference in the Offering Circular Registration Statement to the closing date of the latest available income statement read by such accountants them there were any decreases, as compared with the corresponding period of the previous year year, in consolidated net salesoperating revenues, operating income, net income, the ratio of earnings to fixed charges (measured on the most recent twelve month period), or in earnings per share of common stock except in all instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; or (3) at a specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the company or, at such date, there was any decrease in net assets of the company as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement, [or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to a specified date not more than five days prior to the Closing Date, there were any decreases as compared with the corresponding period of the previous year, in operating income or consolidated revenues, operating income, net income or total income; in earnings applicable to common stock,] except in all cases set forth in clauses (B) and (C) above for changes, increases changes or decreases which the Offering Circular disclose Registration Statement discloses have occurred or may occur occur, or which are described in such letter; and
(iviii) they Certain specified procedures have compared specified dollar amounts been applied to certain financial or other statistical information (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular (in each case to the extent that such dollar amounts, percentages and other financial information are derived was obtained from the general accounting records of the Company company) set forth or incorporated by reference in the Registration Statement and its subsidiaries subject to that such procedures have not revealed any disagreement between the internal controls of financial and statistical information so set forth or incorporated and 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 underlying 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 resultsof the company, except as otherwise specified described in such letter.
(b) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Corporation or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery date of this Agreement, (i) there shall not have occurred (i) any change, change or any development or event involving a prospective change, change not contemplated by the Prospectus in or affecting particularly the condition (financial business or otherwise), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise Corporation which, in the reasonable judgment of the Representatives is material and adverse and makes it impractical or inadvisable to proceed with completion a majority in interest of the offering or Purchasers including you, materially impairs the sale investment quality of and payment for the Offered Securities; Purchased Notes, (ii) any downgrading in the no rating of any of the Corporation's debt securities of the Company shall have been lowered by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, agency and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of 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 or any setting of shall not have been suspended nor limited, other than a temporary suspension in trading to provide for an orderly market, nor shall minimum prices for trading have been established on such exchangeExchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any a banking moratorium shall not have been declared either by U.S. Federal, New York authorities; (vi) any major disruption of settlements of securities State or clearance services in the United States or (vii) any attack on, Federal authorities and there shall not have occurred an outbreak or escalation of major hostilities or act of terrorism involving in which the United States, any declaration of war by Congress States is involved or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representativescrisis, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion which on the financial markets of the offering or sale of and delivery and payment for United States is such as to make it, in your judgment, impracticable to market the Offered SecuritiesPurchased Notes.
(cd) The Purchasers There shall not be in effect on the Closing Date any order of the Public Service Commission of Maryland or the Public Service Commission of the District of Columbia which would prevent the issuance, sale and delivery of the Purchased Notes in accordance with the terms contemplated by this Agreement.
(e) You shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for of the Company, Corporation (relying on Piper and Marbury as to Virginia law) to the effect that:
: (i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement Corporation has been duly authorized, executed incorporated and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes is validly existing as a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of NevadaMaryland and the Commonwealth of Virginia, with corporate power and authority (corporate and other) to own its respective properties and conduct its business respective businesses as described in the Offering CircularProspectus; and the Company Corporation is duly qualified to do business as a foreign corporation in good standing in the Commonwealth of Pennsylvania, the District of Columbia and all other jurisdictions in which its ownership or lease of property or the conduct of its business or the ownership of its properties requires such qualification, except where qualification and the failure to be do so qualified or in good standing would not have a Material Adverse Effect;
material and adverse impact on its financial condition; (viiiii) Each subsidiary of The Indenture has been duly authorized, executed and delivered by the Company Corporation and is an existing corporationa valid instrument, legally binding on the Corporation and enforceable in accordance with its terms, except as limited liability company by bankruptcy, insolvency, or other entity in good standing under laws affecting the laws enforcement of the jurisdiction creditors' rights and by general principles of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coequity;
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) : The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers KPMG LLP confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder ("Rules and Regulations") and to the effect that:
(i) In : in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (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. 10071, Interim Financial Information, on the unaudited financial statements included in the Offering Circular;
(iii) Exchange Act Reports; 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 included in the Offering Circular Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) ; 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Exchange Act Reports; or
(C) or for the period from the closing date of the latest income statement included in the Offering Circular Exchange Act Reports 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 in consolidated net sales, net operating income or consolidated net income or total incomein the ratio of earnings to fixed charges; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular Document or Exchange Act Reports disclose have occurred or may occur or which are described in such letter; and
(iv) and they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document and the Exchange Act Reports (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 '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.
(b) . Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of 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, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise a whole which, in the reasonable judgment of a majority in interest of the Representatives Purchasers 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 SecuritiesSecurities as contemplated in the Offering Document; (iiB) any downgrading in the rating of any debt securities of the Company by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook); (iiiC) 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 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 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; (vD) any banking moratorium declared by U.S. Federalfederal or, New York authorities; (viE) any major material disruption of settlements or suspension of securities settlement or clearance services in the United States services; or (viiF) 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 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 sale of and delivery and payment for the Offered Securities.
(c) Securities as contemplated in the Offering Document. The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, Esq., Senior Vice President and General Counsel to of the Company, that:
that (i) subject to acceptable assumptions and qualifications): The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor its Significant Subsidiaries has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities incorporated and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevadajurisdiction in which it is organized, with corporate power and authority to own its properties and conduct its business as described in the Offering CircularDocument and Exchange Act Reports; and the Company and each of its Significant Subsidiaries is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where to the failure extent that all failures to be so qualified or in good standing standing, in the aggregate, would not have a Material Adverse Effect;
; To such counsel's knowledge, neither the Company nor any of its subsidiaries (viiiA) is in violation of its charter or by-laws, (B) is in default, and no event has occurred, which, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any term, covenant or condition contained in any material agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (C) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of clauses (B) and (C), for those defaults, violations or failures which, either individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect; To the best of such counsel's knowledge and other than as set forth in the Offering Document, there are no pending actions, suits or proceedings against the Company, any of its Significant Subsidiaries or any of their respective properties that would reasonably be expected to have a Material Adverse Effect; and, to the best of such counsel's knowledge, no such proceedings are threatened by governmental authorities or threatened by others; Each subsidiary of this Agreement, the Indenture, the Registration Rights Agreement and the Issuer Call Spread Transactions has been duly authorized, executed and delivered by the Company; the Offered Securities have been duly authorized, executed, issued and delivered and conform to the description thereof contained in the Offering Document; assuming that each of the Indenture, the Offered Securities, the Registration Rights Agreement and the Issuer Call Spread Transactions has been duly authorized, executed and delivered by each party thereto (other than the Company) and that, in the case of the Offered Securities, the Offered Securities have been duly authenticated and paid for by the Purchasers pursuant to this Agreement, each of the Indenture, the Offered Securities, the Registration Rights Agreement and the Issuer Call Spread Transactions constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; The execution, delivery and performance of the Indenture, this Agreement, the Registration Rights Agreement and the Issuer Call Spread Transactions and the issuance and sale of the Offered Securities by the Company to the Purchasers 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, (i) any material agreement or instrument to which the Company or any of its Significant Subsidiaries is an existing corporation, limited liability company a party or other entity in good standing under by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject or (ii) the charter or by-laws of the jurisdiction of its incorporation Company or organizationany such subsidiary, with and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement, except, in the case of clause (corporatei) only, limited liability company for any such breach, violation or default which would not have a Material Adverse Effect; The Company is not an "investment company" within the meaning of and othersubject to regulation under the Investment Company Act of 1940, as applicableamended; The Company's authorized equity capitalization is as set forth in the Offering Document, and the capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Offering Document; the Board of Directors of the Company has duly and validly adopted a resolution, reserving such shares of Common Stock for issuance upon conversion; and the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Offered Securities or the shares of Common Stock issuable upon the conversion thereof; and Such counsel have no reason to believe that the Offering Document or any amendment or supplement thereto, or any Exchange Act Report, contained (as of its respective date and, in the case of the final Offering Document, as of the date hereof and as of the Closing Date) any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Offering Document and the Exchange Act Reports of legal and governmental proceedings and contracts and other documents are accurate in all material respects and fairly present in all material respects the information; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Document and the Exchange Act Reports or the statements in the Offering Document under the heading "Certain United States Federal Income Tax Consequences". The Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Company, that (subject to acceptable assumptions and qualifications): Assuming that each of the Indenture, the Offered Securities, the Registration Rights Agreement and the Issuer Call Spread Transactions has been duly authorized, executed and delivered by each party thereto (other than the Company) and that, in the case of the Offered Securities, the Offered Securities have been authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Purchasers pursuant to this Agreement, each of the Indenture, the Offered Securities, the Registration Rights Agreement and the Issuer Call Spread Transactions constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; No consent, approval, authorization or order of, or filing with, any United States federal, New York or, to the extent required under the General Corporation Law of the State of Delaware, Delaware governmental agency or body is required in connection with the issuance or sale of the Offered Securities by the Company to the Purchasers, except such as may be required under state securities laws; The execution, delivery and performance by the Company of the Indenture, this Agreement, the Registration Rights Agreement and the Issuer Call Spread Transactions and the issuance and sale by the Company of the Offered 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, (A) any United States federal or New York statute or, to the best of such counsel's knowledge, rule or regulation, (B) the Delaware General Corporation Law or (C) the charter or by-laws of the Company; Each of this Agreement, the Indenture, the Registration Rights Agreement and the Issuer Call Spread Transactions has been duly authorized, executed and delivered by the Company; the Offered Securities have been duly authorized, executed, issued and delivered by the Company; the shares of Common Stock into which the Offered Securities are convertible have been duly authorized, and when issued upon conversion of the Offered Securities will be validly issued, fully paid and nonassessable and not subject to any statutory preemptive rights or, to the knowledge of such counsel, any other similar rights; Assuming (A) the accuracy of the representations and warranties of the Company in Sections 2(r) and (t) hereof, (B) the accuracy of the representations and warranties of the Purchasers in Section 4 hereof, (C) compliance in all material respects with the offering and transfer procedures and restrictions in this Agreement and the Offering Document, (D) the accuracy of the representations and warranties specified in the Offering Document as being made by each of the purchasers (the "Initial Resale Purchasers") to own its properties whom the Purchasers initially resell the Offered Securities and co(E) the receipt by each Purchaser and Initial Resale Purchaser of a copy of th
Appears in 1 contract
Sources: Purchase Agreement (Computer Associates International Inc)
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers confirming that they are independent public accountants under Rule 101 of the American Institute of Certified Public Accountants Code of Professional Conduct, and its interpretations and rulings, and to the effect that:
(i) In their opinion the consolidated financial statements and financial statement schedules audited by them and included in the Offering Circular comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (the “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. 100, Interim Financial Information, on the unaudited financial statements included in the Offering Circular;
(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 included in the Offering Circular do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular ; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular 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 year, in consolidated net sales, net operating income or consolidated net income or total income; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular (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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of the Representatives 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 Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the RepresentativesPurchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal, Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the RepresentativesPurchasers, 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 delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee Guarantees and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions Company’s senior secured credit facilities or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coconduct its business as described in the Offering Circular; and
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company 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 Company Issuer and the Guarantors made pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantors of its their obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in agreed form confirming that they are independent public accountants under Rule 101 within the meaning of the American Securities Act and the applicable published rules and regulations thereunder (“Rules and Regulations”), the Securities Act of Alberta and the rules of professional conduct of the Institute of Certified Public Chartered Accountants Code of Professional Conduct, and its interpretations and rulings, Alberta and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Document comply as to form in all material respects with the applicable accounting requirements of the Canadian Institute of Chartered Accountants (the “CICA”), the Securities Act of Alberta, the Securities Act and the applicable rules and regulations thereunder (the “related published Rules and Regulations”);
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants Company Accounting Oversight Board (the “PCAOB”) for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the CompanyIssuer, inquiries of officials of the Company Issuer 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 included in the Offering Circular Document do not comply as to form in all material respects with the applicable accounting requirements of the Exchange CICA, the Securities Act of Alberta, the Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by such accountantsNovember 11, or at a subsequent specified date not more than three business days prior to the date of this Agreement, 2005 there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company Parent and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was or any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular September 30, 2005 to the closing date of the latest available income statement read by such accountants November 15, 2005, there were any decreases, as compared with the corresponding period of the previous year year, in consolidated net sales, net operating income or income, consolidated net income or total incomein the ratio of earnings to fixed charges; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular Document disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document (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 Parent and its subsidiaries subject to the internal controls of the CompanyParent’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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and Parent, its subsidiaries and MPP, taken as one enterprise which, in the reasonable judgment of a majority in interest of the Representatives Purchasers including CSFB, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company Issuer or any Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company Issuer or any Guarantor (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company Issuer or any Guarantor has been placed on negative outlook; (iii) any change in U.S. U.S., Canadian 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 RepresentativesPurchasers including CSFB, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; , (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or the Toronto Stock Exchange, or any setting of minimum prices for trading on such exchange, or ; (v) any suspension of trading of any securities of the Company Parent on any exchange or in the over-the-counter market; (vvi) any banking moratorium declared by U.S. Federal, New York or Canadian authorities; (vivii) any major disruption of settlements of securities or clearance services in the United States or Canada or (viiviii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United StatesStates or Canada, 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 RepresentativesPurchasers including CSFB, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of Paul, Weiss, Rifkind W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ L.L.P.LLP, United States counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects Issuer to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.Exhibit A.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇Stikeman Elliott LLP, General Counsel to Canadian counsel for the CompanyIssuer, that:
(i) The Indenture has been duly authorizedParent is a corporation, executed incorporated, valid and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing subsisting under the laws of the State Province of NevadaAlberta, with corporate power and authority to own its properties and conduct its business as described in the Offering CircularDocument; and the Company Parent is duly registered or qualified to do business as a foreign corporation or extra-provincial corporation, as applicable, and to the extent such jurisdictions have such a concept, is in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where ; all of the failure to be so qualified or issued and outstanding shares in good standing would not the capital of the Issuer have a Material Adverse Effect;been duly authorized and validly issued and are fully paid and nonassessable.
(viiiii) Each subsidiary of the Company Subsidiary is an a validly existing corporation, limited liability company company, partnership or other entity in good standing legal entity, as the case may be, incorporated or formed, valid and subsisting under the laws of the jurisdiction of its incorporation or organizationformation, with power and authority (corporate, limited liability company corporate or such similar power and other, as applicable) to own its properties and coconduct its business as described in the Offering Document; and each Subsidiary is registered or qualified to do business as a foreign or extra-provincial corporation, and to the extent that such jurisdictions have such a concept, is in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; all of the issued and outstanding shares in the capital of each Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; and the shares in the capital or partnership interests of each Subsidiary owned by Parent, directly or through subsidiaries, are owned free from liens, encumbrances and defects, except for those liens arising out of the Senior Credit Facility, the Indenture, the Notes and the 2002 Indenture.
(iii) Each of the Issuer and the Guarantors has the necessary power and authority (corporate or partnership) to execute, deliver, and perform its obligations under each of this Agreement, the Registration Rights Agreement and the Indenture.
(iv) This Agreement has been duly authorized by each of the Issuer and the Guarantors and, to the extent that execution and delivery thereof are governed by applicable Alberta provincial and federal laws of Canada (“Canadian Law”), has been duly executed and delivered by the Issuer and each of the Guarantors.
(v) The Registration Rights Agreement has been duly authorized by each of the Issuer and the Guarantors and, to the extent that execution and delivery thereof are governed by Canadian Law, has been duly executed and delivered by the Issuer and each of the Guarantors.
(vi) The Indenture has been duly authorized by each of the Issuer and the Guarantors and, to the extent that execution and delivery thereof are governed by Canadian Law, has been duly executed and delivered by the Issuer and each of the Guarantors.
(vii) The Issuer has all necessary corporate power and capacity to authorize, issue and sell the Notes, and the Notes have been duly authorized for issuance by all necessary corporate action on the part of the Issuer and have been duly issued by the Issuer and, to the extent that execution and delivery are matters governed by Canadian Law, the global certificates representing the Notes have been duly executed and delivered by the Issuer.
(viii) The Issuer has all necessary corporate power and capacity to authorize, issue and sell the Exchange Securities, and the Exchange Securities have been duly authorized for issuance by all necessary corporate action on the part of the Issuer.
(ix) The Guarantors have all necessary corporate or partnership power and capacity (as applicable) to authorize, issue and grant the Guarantees, and the Guarantees have been duly authorized by all necessary corporate or partnership power (as applicable) on the part of the Guarantors, and, to the extent execution and delivery are matters governed by Canadian Law, the Guarantees have been duly executed and delivered by each of the Guarantors.
(x) The statements set forth in the Offering Circular under the captions “Enforceability of Civil Liabilities Against Foreign Persons,” and “Certain Income Tax Considerations—Canadian Federal Income Tax Considerations,” insofar as they constitute summaries of Canadian legal matters or documents referred to therein, fairly summarize in all material respects the matters referred to therein.
(xi) No consent, approval, authorization, order, registration or qualification of or with any Canadian federal, Alberta or Ontario provincial, court or governmental agency or body is required by the Issuer and the Guarantors in connection with the transactions contemplated by the Purchase Agreement, the Registration Rights Agreement or the Indenture (other than the delivery of the Offering Circular, with a Canadian wrap, to the Ontario Securities Commission if any purchasers reside in Ontario and other than the filing and clearing of the Prospectus pursuant to the Registration Rights Agreement (as defined therein) with respect to the Exchange Securities.)
(xii) To such counsel’s knowledge, (i) there are no pending actions, suits or proceedings against or affecting Parent or any of its subsidiaries, or any of their respective properties that, if determined adversely to Parent or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of Issuer or any of the Guarantors to perform their obligations under the Indenture, this Agreement or the Registration Rights Agreement; and (ii) no such actions, suits or proceedings are threatened or contemplated.
(xiii) The execution, delivery and performance by the Issuer and each of the Guarantors of this Agreement, the Registration Rights Agreement and the Indenture and compliance with the terms and provisions thereof, and the issue and sale of the Offered Securities, will not (A) result in a breach or violation of or cause a default under the Senior Credit Facility; (B) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any Canadian federal, or Alberta or Ontario provincial, statute, rule or regulation applicable to the Issuer or any of the Guarantors, (C) to such counsel’s knowledge, result in a breach or violation of any judgment, order or decree of any Canadian federal, or Alberta or Ontario, provincial, government, governmental, regulatory or administrative agency, authority, commission or instrumentality or court having jurisdiction over the Issuer or any Guarantor or any of their properties or assets, or any agreement or instrument to which the Issuer or any such Guarantor is bound or to which any of the properties of the Issuer or any such Guarantor is subject, or (D) result in a breach or violation of the charter or by-laws of any of the Issuer or the Guarantors, except for such breaches, violations or defaults related to the opinions set forth in (A), (B) and (C) of this paragraph (xiii) which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(xiv) To such counsel’s knowledge, no order having the effect of ceasing or suspending the distribution of the Offered Securities has been issued by any Canadian federal or Alberta or Ontario provincial securities commission or the Toronto Stock Exchange and no proceedings for that purpose have been instituted or are pending.
(xv) The Issuer is not, to such counsel’s knowledge, on any list of defaulting reporting issuers maintained under the securities legislation of Alberta or Ontario.
(xvi) The Indenture and the issuance of the Offered Securities thereunder comply, to the extent applicable, with the provisions of the Business Corporations Act (Alberta); and no registration, filing or recording of the Indenture under the federal laws of Canada or the laws of Alberta or Ontario is necessary in order to preserve or protect the validity or enforceability of the Indenture or the Offered Securities issued thereunder.
(xvii) Subject to the assumptions and qualifications set forth in the Offering Document, under the current laws and regulations of Canada and any political subdivision thereof, all interest, principal, premium, if any, and other payments due or made on the Offered Securities may be paid by the Issuer to the beneficial owner thereof in United States dollars or Canadian dollars that may be converted into foreign currency and freely transferred out of Canada and all such payments made to beneficial owners thereof who are non-residents of Canada and do not use or hold the Notes in connection with or in the course of carrying on business in Canada and, in the case of a beneficial owner that is an insurer, establishes that the Notes are not “designated insurance property” for purposes of the Income Tax Act (Canada) will not be subject to income, withholding or other taxes under the laws and regulations of Canada or any political subdivision or taxing authority thereof or therein and all such payments will otherwise be free and clear of any other tax, duty, withholding or deduction in Canada or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any Canadian federal, provincial or other governmental authorization.
(xviii) Provided that a Purchaser is a
Appears in 1 contract
Sources: Purchase Agreement (Compton Petroleum Holdings CORP)
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Firm Securities on the First Closing Date and for the Optional Securities and on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers KPMG LLP in agreed form confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included incorporated by reference in the Offering Circular Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (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. 10071, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument and in the Exchange Act Reports;
(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 included incorporated by reference in the Offering Circular Document or in the Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included incorporated by reference in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular Document 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 incorporated by reference in the Offering Document, in consolidated net sales, net operating income or in the total or per share amounts of consolidated income before extraordinary items or net income or total income; in the ratio of earnings to fixed charges except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular Document disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document and the Exchange Act Reports (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 '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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Representatives Purchasers including 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; (ii) any downgrading in the rating of any debt securities of the Company by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the RepresentativesPurchasers including CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; , (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; (v) any banking moratorium declared by U.S. Federal, Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any 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 RepresentativesPurchasers including CSFBC, 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 delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, subject to such qualifications as may be acceptable to Purchasers in their sole discretion, dated as of the such Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇▇, Nevada counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed incorporated and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes is existing as a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular;
(ii) The Indenture has been duly authorized, executed and delivered by the Company; the Offered Securities delivered on such Closing Date have been duly authorized, executed, and delivered by the Company;
(iii) The Company has the corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement;
(iv) This Agreement and the Registration Rights Agreement have each been duly authorized, executed and delivered by the Company;
(v) The shares of Common Stock of the Company initially issuable upon conversion of the Offered Securities delivered on such Closing Date have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion in accordance with the provisions of the Indenture, will be validly issued, fully paid and nonassessable and conform to the description thereof contained in the Offering Circular; and the stockholders of the Company have no preemptive rights under any law or the Company's charter or by-laws with respect to the Offered Securities or the Common Stock;
(vi) The execution, delivery and performance of the Indenture, the Offered Securities, this Agreement and the Registration Rights Agreement (including the issuance and sale of the Offered Securities pursuant to this Agreement) and compliance with the terms and provisions thereof will not result in a breach or violation of, or constitute a default under, any Nevada statute, any rule, regulation or order of any Nevada governmental agency or body or any court having jurisdiction over the Company or any of its properties, or the charter or by-laws of the Company;
(vii) The descriptions in the Offering Circular under "Description of Capital Stock" insofar as such descriptions constitute summaries of Nevada statutes, legal and governmental proceedings in Nevada and the charter and bylaws of the Company and other specifically referenced corporate records and documents are accurate in all material respects and fairly present the information required to be set forth therein.
(d) The Purchasers shall have received an opinion, dated such Closing Date, of ▇▇▇▇▇▇ Godward LLP, counsel for the Company, that:
(i) The Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to be so qualified or in good standing would not have result in a Material Adverse Effect;
(viiiii) Each subsidiary The Offered Securities delivered on such Closing Date have been duly authenticated and validly issued by the Company and conform in all material respects to the description thereof contained in the Offering Circular under the caption "Description of the Notes;" and the Indenture and the Offered Securities delivered on such Closing Date constitute valid and legally binding obligations of the Company is an existing corporationenforceable against the Company in accordance with their terms, limited liability company or other entity in good standing under the 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;
(iii) The Registration Rights Agreement constitutes a valid and legally binding obligation of the jurisdiction Company enforceable in accordance with its terms (subject to customary exceptions);
(iv) The Offered Securities delivered on such Closing Date are convertible into Common Stock of the Company in accordance with the terms of the Indenture;
(v) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act;
(vi) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the issuance or sale of the Offered Securities by the Company or the consummation by the Company of the transactions contemplated by this Agreement, the Indenture, the Registration Rights Agreement, except such as may be required (A) under state securities laws and (B) in connection with the filing and effectiveness of the Shelf Registration Statement as contemplated by the Registration Rights Agreement;
(vii) To such counsel's knowledge, except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Company, any of its incorporation subsidiaries or organizationany of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and to such counsel's knowledge, no such actions, suits or proceedings are overtly threatened;
(viii) The execution, delivery and performance by the Company of the Indenture, this Agreement and the Registration Rights Agreement, the issuance and sale of the Offered Securities pursuant to this Agreement and compliance by the Company with power and authority (corporate, limited liability company and other, as applicable) to own its properties and cothe terms and
Appears in 1 contract
Sources: Purchase Agreement (Cymer Inc)
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company Issuers herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company Issuers made pursuant to the provisions hereof, to the performance by the Company Issuers of its their respective obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers LLP in agreed form confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (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 or No. 100, as applicable, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument and in the Exchange Act Reports;
(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 included in the Offering Circular Document or in the Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements Regulation S-X of the Exchange Act and Commission, except that the related published Rules and Regulations Company has not included those financial statements required to be filed pursuant to Regulation S-X, Article 3-05, “Financial Statements of Business Acquired or to be Acquired,” or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assetssubsidiaries, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document, except as disclosed in the Offering Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular Document to the closing date of the latest available income statement schedule of consolidated ▇▇▇▇▇▇▇▇ read by such accountants there were any decreases, as compared with the corresponding period of the previous year year, in consolidated net sales, net operating income or consolidated net income or total income▇▇▇▇▇▇▇▇; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular disclose Document discloses have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document and the Exchange Act Reports (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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company Issuers and its their respective subsidiaries taken as one enterprise which, in the reasonable judgment of the Representatives 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 Company Issuers by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company 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 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 the RepresentativesPurchasers, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; , (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company 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 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 RepresentativesPurchasers, 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 delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇, ▇▇▇▇ & ▇’▇▇▇▇▇▇ L.L.P.▇▇▇, P.C., counsel for the Company, that:
(i) The IndentureCompany has been duly incorporated and is an existing corporation in good standing under the laws of the Commonwealth of Massachusetts, with corporate power and authority to own its properties and conduct its business as described in the Guarantees Offering Document; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where failure to be so qualified or to be in good standing would not individually or in the aggregate have a material adverse effect or prospective material adverse effect on the condition (financial or other), business, properties or results of operations of the Issuers and their subsidiaries taken as a whole;
(ii) Each subsidiary of the Company which is a Guarantor has been duly incorporated or organized, as applicable, and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and each subsidiary of the Company is duly qualified to do business as a foreign corporation or organization, as applicable, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where failure to be so qualified or to be in good standing would not individually or in the aggregate have a material adverse effect or prospective material adverse effect on the condition (financial or other), business, properties or results of operations of the Issuers and their subsidiaries taken as a whole; all of the issued and outstanding capital stock of each such subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects except for liens permitted by the Indenture and the Security Documents;
(iii) The Indenture has been duly authorized, executed and delivered; the Offered Securities have been duly authorized, executed, authenticated, issued and delivered; and the Indenture and the Offered Securities conform in all material respects to the description descriptions thereof contained in the Offering Circular; Document and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors Issuers, 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 generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iiiiv) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(v) The Exchange Securities have been duly authorized by the Company and the Guarantors; and when the Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities will be entitled to the benefits of the Indenture and will be the valid and legally binding obligations of the Company and the Guarantors, 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;
(ivvi) The Subsidiary Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor, and has been duly executed and delivered by each such Guarantor and conforms to the description thereof contained in the Offering Document. When the Offered Securities have been issued, executed and authenticated in accordance with the Indenture and delivered to and paid for by the Purchasers in accordance with the terms of this Agreement, the Subsidiary Guarantee of each Guarantor endorsed thereon will constitute a valid and legally binding obligation of such Guarantor, 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;
(vii) The Subsidiary Guarantee to be endorsed on the Exchange Securities by each Guarantor has been duly authorized by such Guarantor; and, when issued, will have been duly executed and delivered by each such Guarantor and will conform to the description thereof contained in the Offering Document. When the Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Subsidiary Guarantee of each Guarantor endorsed thereon will constitute a valid and legally binding obligation of such Guarantor, 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;
(viii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors, conforms to the description thereof in the Offering Document and is a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each Guarantor 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;
(ix) The Security Documents have been duly authorized, executed and delivered by the Company and each of the Guarantors, and constitute valid and binding agreements of the Company and each of the Guarantors, enforceable against the Company and each Guarantor 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. The Security Documents conform to the description thereof contained in the Offering Document;
(x) Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws;
(xi) To their knowledge, except for certain registration rights held by the holders of the Company’s outstanding Series C Preferred Stock (which shall terminate upon the redemption of the Series C Preferred Stock on the Closing Date) and certain registration rights which shall be granted to such holders with respect to the warrants such holders shall receive as part of the redemption of the Series C Preferred Stock as described in the Offering Document, there are no contracts, agreements or understandings between the Company or any Guarantor and any person granting such person the right to require the Company or such Guarantor to file a registration statement under the Securities Act with respect to any securities of the Company or such Guarantor or to require the Company or such Guarantor to include such securities with the Securities and Subsidiary Guarantees registered pursuant to any Registration Statement;
(xii) No registration under the Securities Act of the Offered Securities or the Subsidiary Guarantees is required for the sale of the Offered Securities and the Subsidiary Guarantees to the Purchasers as contemplated hereby or for the Exempt Resales assuming the accuracy of the Purchaser’s representations set forth in Section 4 hereof;
(xiii) No Issuer is and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Document, no Issuer will be an “investment company” as defined in the Investment Company Act;
(xiv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the GuarantorsCompany, except (i) such as may be required under state securities laws and except for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(vxv) To their knowledge, except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Issuers, any of their respective subsidiaries or any of their respective properties that, if determined adversely to the Issuers or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuers to perform their obligations under the Indenture, this Agreement, the Registration Rights Agreement or the Security Documents, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(xvi) The execution, delivery and performance of the Indenture, the Guaranteesthis Agreement, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, Security Documents and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorizedany statute, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and corule
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantors herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of each of the Company and each Guarantor made pursuant to the provisions hereof, to the performance by each of the Company and each Guarantor of its their obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers KPMG LLP confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, Securities Act and its interpretations the applicable published rules and rulings, regulations thereunder (“Rules and Regulations”) and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included or incorporated by reference in the Offering Circular Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (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. 100, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument and in the Exchange Act Reports;
(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 included in the Offering Circular Document or in the Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement of operations included in the Offering Circular Document to the closing date of the latest available income statement of operations 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 statement of operations included in the Offering Document, in consolidated net salessales volume, net operating income margins, margins from continuing operations, net margins or consolidated net income or total incomein the ratio of margins to fixed charges; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular disclose Document discloses have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document and the Exchange Act Reports (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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties properties, prospects or results of operations of the Company and its subsidiaries taken as one enterprise a whole which, in the reasonable judgment of a majority in interest of the Representatives Purchasers, including CSFB, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or other long-term indebtedness of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or other long-term indebtedness of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the RepresentativesPurchasers including CSFB, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange 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; (v) any banking moratorium declared by U.S. Federal, Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States 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 RepresentativesPurchasers including CSFB, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Bird LLP, counsel for the Company, that:
(i) The IndentureIndenture has been duly authorized, executed and delivered by the Guarantees Company and each Guarantor; the Offered Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and conform in all material respects to the description thereof contained in the Offering CircularDocument; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors 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 generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering CircularDocument, will not be an “investment company” as defined in the Investment Company Act;
(iii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement or the Registration Rights Agreement in connection with the issuance and sale of the Offered Securities, the Exchange Securities or the Private Exchange Securities (each as defined in the Registration Rights Agreement) by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or the Private Exchange Securities by the Guarantors, except such as may be required under state securities laws and except for the filing with the Commission of the Exchange Offer Registration Statement and the Shelf Registration Statement, the order of the Commission declaring such registration statements effective and the qualification of the Indenture under the TIA at the time of the Exchange Offer;
(iv) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement, and the Registration Rights Agreement, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or any agreement listed on Annex I hereto, or the charter or by-laws of the Company or any such subsidiary, and the Company has full power and authority to authorize, issue and sell the Offered Securities, the Exchange Securities and the Private Exchange Securities and the Guarantors have full power and authority to issue the Guarantees and the guarantees related to the Exchange Securities and the Private Exchange Securities as contemplated by this Agreement and the Registration Rights Agreement;
(v) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor;
(vi) The Exchange Securities have been duly authorized by the Company and the Guarantors; and when the Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities will be entitled to the benefits of the Indenture and will be the valid and legally binding obligations of the Company, enforceable against it 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;
(vii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor, and has been duly executed and delivered by each such Guarantor and conforms to the description thereof contained in the Offering Document. When the Offered Securities have been issued, executed and authenticated in accordance with the Indenture and delivered to and paid for by the Purchasers in accordance with the terms of this Agreement, the Guarantee of each Guarantor endorsed thereon will constitute valid and legally binding obligations of such Guarantor, enforceable against it 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;
(viii) The guarantee to be endorsed on the Exchange Securities by each Guarantor has been duly authorized by such Guarantor; and, when issued, will have been duly executed and delivered by each such Guarantor and will conform to the description thereof contained in the Offering Document. When the Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute valid and legally binding obligations of such Guarantor, 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;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors, and is a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each Guarantor 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;
(x) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(ivxi) No consent, approval, authorization or order Assuming (A) the accuracy of, or filing and compliance with, the Purchasers’ representations, warranties and agreements and the representations, warranties and agreements of the Company in this Agreement as to the absence of any governmental agency general solicitation or body or the use of any court general advertising materials in connection with the offering of the Offered Securities and the nature of the offerees of the Offered Securities and (B) the accuracy of the representations, warranties and agreements made in accordance with the Offering Circular by purchasers to whom the Purchasers’ initially resell the Offered Securities, no registration of the Offered Securities under the Securities Act, and no qualification of an indenture under the Trust Indenture Act with respect thereto, is required for the consummation of the transactions contemplated by this Agreement offer, sale and the Registration Rights Agreement in connection with the issuance or sale initial resale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register by this Agreement; and
(xii) The statements made in the Offered Securities Offering Circular under the Securities Act or caption “Description of the Cooperative”, insofar as they purport to qualify an indenture describe statutes, regulations and other laws of the Federal government of the United States of America and the state of Georgia relating to cooperatives, accurately describe and fairly summarize in respect thereof all material respects such statutes, regulations and other laws; the descriptions in the Offering Circular under the TIACaptions “Descriptions of the Notes,” “Description of Certain Indebtedness,” “Summary of Certain United States Federal Tax Considerations,” “Transfer Restrictions,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital Resources,” and “Risk Factors - We may have many conflicts of interest with our board of directors that could affect our operations,” “ - Despite current indebtedness levels, we and our subsidiaries may still be able to incur substantially more debt, which could exacerbate the risks described above,” “ - If we do not qualify under IRS rules as a cooperative, we would be subject to additional income tax liabilities and would likely forfeit potentially significant income tax benefits,” “ - Restrictive covenants in the notes and our other indebtedness could adversely affect our business by limiting our operating and strategic flexibility”, “ - Although the notes are referred to as “senior notes”, they will be effectively subordinated to any of our secured indebtedness, the secured indebtedness of our subsidiary guarantors and all obligations of our non-guarantor subsidiaries,” “ - Fraudulent transfer statutes may limit your rights to receive payment on the notes,” and “ - The notes are subject to restriction on transfer” of statutes and contracts and other documents are accurate and fairly present in all material respects such information. In addition, such Such counsel shall further state in a letter to the Purchasers that such counsel it has no reason to believe that the Offering CircularCircular (including any Exchange Act Report incorporated by reference therein), or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; , it being understood that such counsel need express no opinion not make any statement as to the financial statements or other financial data contained in or omitted from the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coCircula
Appears in 1 contract
Sources: Purchase Agreement (Gold Kist Inc)
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers KPMG LLP in agreed form confirming that they are independent public accountants certified with respect to the Home Depot, Inc. under Rule rule 101 of the American Institute of Certified Public Accountants AICPA's Code of Professional Conduct, and its interpretations and rulings, and to the effect that:.
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included incorporated by reference in the Offering Circular Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable rules and regulations thereunder (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. 10071, Interim Financial Information, on the unaudited consolidated financial statements included incorporated by reference in the Offering CircularDocument and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available unaudited interim consolidated 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 consolidated financial statements included incorporated by reference in the Offering Circular Document or in the Exchange Act Reports do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed consolidated financial statements for them to be in conformity with generally accepted accounting principles;
(B) the unaudited consolidated net sales, operating income, net earnings and net earnings per share amounts for the six-month periods ended August 1, 1999 and August 2, 1998 incorporated by reference in the Offering Document do not agree with the amounts set forth in the unaudited consolidated financial statements for those same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of earnings;
(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 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 the date of the latest available unaudited consolidated balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest unaudited consolidated balance sheet included incorporated by reference in the Offering Circular ; orDocument;
(CD) for the period from the closing date of the latest income unaudited consolidated statement included of earnings incorporated by reference in the Offering Circular Document to the closing date of the latest available income unaudited consolidated statement of earnings read by such accountants there were any decreases, as compared with the corresponding period of the previous year year, in operating income consolidated net sales, net operating income earnings or consolidated net income or total incomein the ratio of earnings to fixed charges; except in all cases set forth in clauses (B6(a)(iii)(C) and (C6(a)(iii)(D) above for changes, increases or decreases which the Offering Circular Document disclose have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document and the Exchange Act Reports (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 '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.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its subsidiaries subsidiaries, taken as one enterprise enterprise, which, in the reasonable judgment of a majority in interest of the Representatives Purchasers including 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; (iiB) any downgrading in the rating of any debt securities of the Company by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of 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; (ivC) 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; (vD) any banking moratorium declared by U.S. Federal, Federal or New York authorities; or (viE) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the RepresentativesPurchasers including CSFBC, 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 delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.King and Spalding, counsel for the Company, that:
(i) The Indenturethe Company 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 Guarantees Offering Document;
(ii) the Indenture has been duly authorized, executed and delivered by the Company; the Offered Securities on the Closing Date have been duly authorized, executed, authenticated, issued and delivered and conform in all material respects to the description thereof contained in the Offering CircularDocument; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of enforceable against the Guarantors enforceable Company 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 generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required on the part of the Company for the consummation of the transactions contemplated by this Agreement and Agreement, the Indenture or the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the GuarantorsCompany, except (i) such as may be required under state securities laws except for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(viv) The the execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Facilities to be entered into as part Company or any subsidiary of the Refinancing Transactions Company or any of their properties, or the indenture governing charter or by-laws of the Company’s 13% Senior Subordinated NotesCompany or any such subsidiary, as currently in effect, and the Company has full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement;
(viv) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state that, in a letter to their capacity as counsel for the Company, they have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and with representatives and counsel for the Purchasers that at which the contents of the Offering Document were discussed, and, although such counsel is not passing on and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Document, on the basis of the information that was developed in the course of such counsel's performance of the services referred to above, nothing has no reason come to such counsel's attention that causes such counsel to believe that the Offering Circular, or any amendment or supplement thereto, or any Exchange Act Report as of the date hereof and as of the such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the light of Company's Form 10-K for the circumstances year ended January 31, 1999 under which they were madethe Caption "Item 3. Legal Proceedings"of statutes, not misleadinglegal and governmental proceedings and contracts and other documents are accurate and fairly present the information; it being understood that such counsel need express no opinion or belief as to the financial statements or other financial data contained in, incorporated by reference in, or omitted from the Offering Circular and the Exchange Act Reports;
(vi) this Agreement and the Registration Rights Agreement have each been duly authorized, executed and delivered by the Company;
(vii) assuming (A) the accuracy of the representations and warranties of the Company set forth in Section 2 of this Agreement (other than clauses (k), (l) and (m) thereof) and of the Purchasers set forth in Section 4 of this Agreement, (B) the due performance by the Company of the covenants and agreements set forth in Section 5 of this Agreement and the due performance by the Purchasers of the covenants set forth in Section 4 of this Agreement, (C) compliance by the Purchasers with the offering and transfer procedures and restrictions described in the Offering Circular. In rendering its opinion Document and (D) the accuracy of the representations and warranties made in accordance with the Offering Document by buyers to whom the Purchasers initially resell the Offered Securities, it is not necessary in connection with (A) the offer, sale and delivery of the Offered Securities by the Company to the Purchasers pursuant to this SectionAgreement and the Offering Document or (B) the initial resales of the Offered Securities by the Purchasers in the manner contemplated by this Agreement and the Offering Document to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act (it being understood that we express no opinion in this paragraph as to any subsequent resale of any Offered Securities). In giving the opinions required by this subsection (c) of this Section 6, King & Spalding, (i) may limit such opinion to the laws of the State of Georgia and New York and the corporate law of the State of Delaware and the Federal laws of the United States, and (ii) may rely, as to matters of fact, upon the representations and warranties of the Company contained herein and upon certificates of officers of the Company and of public officials. The foregoing opinions may also be subject to such assumptions and qualifications as are satisfactory to counsel for the Purchasers.
(d) You shall have received an opinion, dated such Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Corporate Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated under the laws of the State of Delaware;
(ii) such counsel does not know of any legal or governmental proceedings required to be described in the Offering Document in which are not described as required or of any contracts or documents of a character required to be described in the Offering Document or to be filed as exhibits to any document incorporated by reference in the Offering Document which are not described and filed as required;
(iii) the documents incorporated by reference in the Offering Document, when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder;
(iv) the execution, delivery and performance by the Company of the Indenture, this Agreement and the Registration Rights Agreement and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the material terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, bond, debenture, note or other evidence of indebtedness or any material lease, contract or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is bound. In giving the opinions required by this subsection (d) of this Section 6, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (i) may limit such opinion to the laws of the State of Georgia and the corporate law of the State of Delaware and the Federal laws of the United States, and (ii) may rely, as to matters of fact, upon the representations and warranties of the Company contained herein and upon certificates of officers of the Company and of public officials. The foregoing opinions may also be subject to such assumptions and qualifications as are satisfactory to counsel for the Purchasers.
(e) The Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas▇▇▇, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, such opinion or opinions, dated Closing Date, with respect to the extent they deem proper, on certificates of responsible officers validity of the Company Offered Securities, the Offering Document, the exemption from registration for the offer and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery sale of the Offered Securities by the Company to the several Purchasers and the resales by the several Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Company shall have furnished to such counsel such documents and securities referenced in paragraphs (i) through (x) aboveas they request for the purpose of enabling them to pass upon such matters.
(df) The Purchasers shall have received an opiniona certificate, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, General Counsel to the Company, that:
(i) The Indenture has been duly authorized, executed President or any Vice President and delivered by the Company and each Guarantor; the Guarantees have been duly authorized, executed and delivered by the applicable Guarantor; the Offered Securities have been duly authorized, executed, issued and delivered by the Company;
(ii) This Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership principal financial or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary accounting officer of the Company is an existing corporationin which such officers, limited liability company or other entity in good standing under to the laws best of their knowledge after reasonable investigation, shall state that the representations and warranties of the jurisdiction of Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its incorporation part to be performed or organizationsatisfied hereunder at or prior to the Closing Date, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and cothat,
Appears in 1 contract
Sources: Purchase Agreement (Home Depot Inc)
Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor herein, as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company and the Guarantor made pursuant to the provisions hereof, to the performance by the Company and the Guarantor of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers each of KPMG LLP and KPMG in agreed form confirming that they are independent public accountants under Rule 101 within the meaning of the American Institute of Certified Public Accountants Code of Professional Conduct, and its interpretations the applicable published rules and rulings, regulations thereby and to the effect that:
(i) In in their opinion the consolidated financial statements and financial statement schedules audited examined by them and included in the Offering Circular Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable published rules and regulations thereunder (the “"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. 10071, Interim Financial Information, on the unaudited financial statements included in the Offering CircularDocument and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the CompanyGuarantor, inquiries of officials of the Company Guarantor 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 included in the Offering Circular Document do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited condensed financial statements for them to be in conformity with generally accepted accounting principles;
(B) 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 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 the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets (working capital) or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Circular Document; or
(C) for the period from the closing date of the latest income statement included in the Offering Circular Document 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 year, in consolidated net sales, net operating income, consolidated income before extraordinary items or consolidated net income or total incomein the ratio of earnings to fixed charges; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Circular disclose Document discloses have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Circular Document (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 Guarantor and its subsidiaries subject to the internal controls of the Company’s Guarantor'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.
(v) other items, in form and substance satisfactory to the Purchaser, concerning the financial information with respect to the Guarantor and the Guarantor's subsidiaries and the unaudited pro forma financial data, in each case as set forth in the Offering Document.
(b) The Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers LLP in form and substance satisfactory to the Purchasers concerning the financial information with respect to the Product Lines set forth in the Offering Document.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial or otherwiseother), business, properties or results of operations of the Company and its Company, the Guarantor or the Guarantor's subsidiaries taken as one enterprise which, in the reasonable judgment of the Representatives 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; (iiB) any downgrading in the rating of any debt securities of the Company by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company or the Guarantor (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook); (iiiC) 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 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 prices for trading on such exchange, or any suspension of trading of any securities of the Company or the Guarantor 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 outbreak or escalation of major disruption of settlements of securities or clearance services hostilities in which the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United StatesIreland 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 RepresentativesCSFBC, 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 delivery and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, that:
(i) The Indenture, the Guarantees and the Offered Securities conform in all material respects to the description thereof contained in the Offering Circular; and (assuming due authorization, execution and delivery of the Indenture by the Trustee, due authentication of the Offered Securities by the Trustee and delivery of the Offered Securities against payment therefor in accordance with the Purchase Agreement) the Indenture, the Guarantee and the Offered Securities constitute valid and legally binding obligations of the Company and of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ii) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Circular, will not be an “investment company” as defined in the Investment Company Act;
(iii) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the issuance or sale of the Offered Securities by the Company or the issuance of the Guarantees or the guarantees related to the Exchange Securities or Private Exchange Securities by the Guarantors, except (i) for the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement with the Commission and the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (ii) as may be required by the Trust Indenture Act or (iii) for any consent, approval, authorization, order, or filing required pursuant to federal or state securities or “blue sky” laws of foreign securities laws;
(v) The execution, delivery and performance of the Indenture, the Guarantees, this Agreement and the Registration Rights Agreement by the Company and the Guarantors, and the issuance and sale of the Offered Securities by the Company and the issuance of the Guarantees by the Guarantors, the application of the net proceeds therefrom and compliance in each case 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, the Facilities to be entered into as part of the Refinancing Transactions or the indenture governing the Company’s 13% Senior Subordinated Notes;
(vi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors and (assuming due authorization, execution and delivery by the Purchasers) constitutes a valid and legally binding obligation of the Company and of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles and public policy considerations with respect to any rights of indemnity or contribution;
(vii) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors; and when the Exchange Securities and Private Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities and Private Exchange Securities 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 relating to or affecting creditors’ rights generally and to general equity principles;
(viii) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by such Guarantor and conforms in all material respects to the description thereof in the Offering Circular; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles;
(ix) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor; and when the Exchange Securities and Private Exchange Securities have been issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the guarantee of each Guarantor endorsed thereon will constitute the valid and legally binding obligation of such Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and to general equity principles; and
(x) Assuming the accuracy of the Purchaser’s representations and warranties set forth in this Agreement, it is not necessary in connection with (i) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (ii) the resales of the Offered Securities by the several Purchasers in the manner contemplated hereby to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the TIA. In addition, such counsel shall state in a letter to the Purchasers that such counsel has no reason to believe that the Offering Circular, or any amendment or supplement thereto, as of the date hereof and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Offering Circular. In rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be entitled to rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Purchasers; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering its opinion pursuant to this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall be permitted to assume the due authorization, execution and delivery of the documents and securities referenced in paragraphs (i) through (x) above.
(d) The Purchasers shall have received an opinion, dated as of the Closing Date, of Kirk▇▇▇▇ & ▇lli▇, ▇.S. counsel for the Company and the Guarantor, substantially in the form of Exhibit 1 hereto.
(e) The Purchasers shall have received an opinion, dated the Closing Date, of McCa▇▇ ▇▇▇z▇▇▇▇▇▇▇ ▇. , ▇▇ish counsel for the Company and the Guarantor, in form and substance satisfactory to CSFBC and its counsel.
(f) The Purchasers shall have received an opinion, dated the Closing Date, of Beth ▇▇▇▇▇, ▇▇neral Counsel of the Company and the Guarantor, substantially in the form of Exhibit 2 hereto.
(g) The Purchasers shall have received from Weil, Gotshal & Mang▇▇ ▇▇▇, General Counsel counsel for the Purchaser, such opinion, dated the Closing Date, with respect to the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the Company to the several Purchasers and the resales by the several Purchasers as contemplated hereby and other related matters as CSFBC may require, and the Company' and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters with reference to same in the Offering Circular.
(h) The Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company and the Guarantor in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company and the Guarantor in this Agreement are true and correct, that the Company and the Guarantor have complied with all agreements and satisfied all conditions on their parts to be performed or satisfied hereunder at or prior to the Closing Date, and that:, subsequent to the dates of the most recent financial statements in the Offering Document, there has been no material adverse change, or any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Guarantor and the Guarantor's subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(i) The Indenture Purchasers shall have received a letter, dated the Closing Date, of KPMG LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(j) The Purchasers shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.
(k) The Acquisitions pursuant to the BMS Agreement shall have been completed on the terms contained in the BMS Agreement.
(l) The Purchasers shall have received evidence, in form and substance satisfactory to the Purchasers and their counsel, that the Company's existing working capital facility with a syndicate of banks led by PNC Business Credit has been duly authorized, executed repaid in full and delivered by the Company and each Guarantor; the Guarantees that all liens securing such facility have been duly authorizedreleased.
(m) The Purchasers shall have received evidence, executed in form and delivered by substance satisfactory to the applicable Guarantor; Purchasers and their counsel, that the Offered Securities Company's existing Senior Subordinated Discount Notes due 2001 have been duly authorizedredeemed in full. The Company will furnish the Purchasers with such conformed copies of such opinions, executedcertificates, issued letters and delivered by documents as the Company;
(ii) This Agreement has been duly authorized, executed and delivered by Purchasers reasonably requests. CSFBC may in its sole discretion waive compliance with any conditions to the Company and by each obligations of the Guarantors;
(iii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and by each of the Guarantors;
(iv) The Exchange Securities and Private Exchange Securities have been duly authorized by the Company and each of the Guarantors;
(v) The Guarantee to be endorsed on the Offered Securities by each Guarantor has been duly authorized by each such Guarantor;
(vi) The Guarantee to be endorsed on the Exchange Securities and Private Exchange Securities by each Guarantor has been duly authorized by such Guarantor and has been duly executed and delivered by each such Guarantor;
(vii) The Company is an existing corporation in good standing under the laws of the State of Nevada, with corporate power and authority to own its properties and conduct its business as described in the Offering Circular; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(viii) Each subsidiary of the Company is an existing corporation, limited liability company or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate, limited liability company and other, as applicable) to own its properties and coPurchasers hereunder.
Appears in 1 contract