Conditions of the Obligations of the Purchasers. The several obligations of the Purchasers to purchase and pay for the Notes as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative of the following conditions precedent on or prior to the Closing Date: (a) The Representative shall have received letters, dated (A) the date hereof, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative and (B) the Closing Date, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative, which letters shall each contain confirming statements and information of the type ordinarily included in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package and the Final Offering Circular, except that the specific date referred to therein for the carrying out of procedures shall be no more than three (3) business days prior to the date of 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 financial condition, results of operations, business or properties of the Company from that set forth in the General Disclosure Package provided to prospective purchasers of the Notes which, in the reasonable judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes in the manner contemplated in the General Disclosure Package or (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 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook. (c) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of the Closing Date. (d) The Representative shall have received (i) an opinion and negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Purchasers may reasonably request, (ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iv) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. Such opinions and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state therein. (e) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representative shall have received a certificate, dated the Closing Date, of an executive officer of the Company 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 to the effect set forth in 7(b)(ii) and that the representations and warranties of the Company in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Date, that the Company 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, that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change in the financial condition, results of operations, business or properties of the Company except as set forth in the General Disclosure Package or as described in such certificate. (g) The Company shall have executed and delivered the Sixth Supplemental Indenture, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof. (h) The Company shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof. (i) On or prior to the Closing Date, copies of the Financing Documents (other than the Indenture and the Notes) in the forms as previously delivered to the Purchasers or their counsel, shall be in full force and effect, no default or event of default (as such terms are defined in each such Financing Document) under any Financing Document shall have occurred and be continuing which would reasonably be expected to have a Material Adverse Effect. (j) The Independent Engineer shall have delivered the Independent Engineer’s Reliance Letter to the Representative; and since January 30, 2015, the date of the Independent Engineer’s Quarterly Construction Report (the “Independent Engineer’s Report”), nothing has come to the attention of the Independent Engineer in connection with the preparation of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative. (k) The Representative shall have received for its own account all fees due and payable to the Representative pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”). All such amounts will be paid with proceeds of the Notes and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date. (l) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date. (m) On or before the Closing Date, the Representative and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. (n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form reasonably satisfactory to the Trustee. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative reasonably request. If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5(j), 8 and 12 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Cheniere Energy Partners, L.P.)
Conditions of the Obligations of the Purchasers. The several obligations of the Purchasers to purchase and pay for the Notes Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative Representatives, of the following conditions precedent on or prior to the Closing Dateprecedent:
(a) The Representative Purchasers shall have received letters, dated (A) the date hereof, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative Representatives and (B) the Closing Date, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the RepresentativeRepresentatives, which letters shall each contain confirming statements and information of the type ordinarily included in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package and the Final Offering CircularMemorandum, except that the specific date referred to therein for the carrying out of procedures shall be no more than three (3) business days prior to the date of such letter.
(b) Subsequent to the execution and delivery of this AgreementAgreement and prior to the Closing Date, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the financial condition, results of operations, business or properties of the Company and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package provided to prospective purchasers of the Notes Securities which, in the reasonable judgment of the RepresentativeRepresentatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes Securities in the manner contemplated in the General Disclosure Package or (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 in Section 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook.
(c) The representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of the Closing Date.
(d) The Representative Representatives shall have received (i) on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Case LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Purchasers may reasonably request, (ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iv) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably requestRepresentatives. Such opinions opinion and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state therein.
(e) The Representative Representatives shall have received on the Closing Date from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative Representatives may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representative Representatives shall have received on the Closing Date a certificate, dated the Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company each Guarantor in which such officersofficer, to the best of their his/her knowledge after reasonable investigation, shall state to the effect set forth in Section 7(b)(ii) hereof and that the representations and warranties of the Company and each Guarantor in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Date, that the Company and each Guarantor 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 date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change in the financial condition, results of operations, business or properties of the Company or the Guarantors except as set forth in the General Disclosure Package or as described in such certificate.
(g) The Company and the Guarantors shall have executed and delivered the Sixth Tenth Supplemental Indenture, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, and the Representative Representatives shall have received executed copies thereof.
(h) The Company and the Guarantors shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, and the Representative Representatives shall have received executed copies thereof.
(i) On or prior to the Closing Date, copies of the Financing Documents (other than the Indenture and the Notes) in the forms as previously delivered to the Purchasers or their counsel, shall be in full force and effect, no default or event of default (as such terms are defined in each such Financing Document) under any Financing Document shall have occurred and be continuing which would reasonably be expected to have a Material Adverse Effect.
(j) The Independent Engineer shall have delivered the Independent Engineer’s Reliance Letter to the Representative; and since January 30, 2015, the date of the Independent Engineer’s Quarterly Construction Report (the “Independent Engineer’s Report”), nothing has come to the attention of the Independent Engineer in connection with the preparation of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative.
(k) The Representative Representatives shall have received for its their own account accounts all fees due and payable to the Representative Representatives pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”)presented. All such amounts will be paid with proceeds of the Notes Securities and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date.
(lj) The sale of the Notes Securities shall not be enjoined (temporarily or permanently) on the Closing Date.
(mk) On or before the Closing Date, the Representative Representatives and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form reasonably satisfactory to the Trustee. The Company will furnish the Representative Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative Representatives reasonably request. If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5(j), 8 and 12 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Cheniere Energy Partners, L.P.)
Conditions of the Obligations of the Purchasers. The several obligations of the several Purchasers to purchase and pay for the Notes as provided herein on the Closing Date are Offered Securities will be subject to the satisfaction or waiveraccuracy of the representations and warranties on the part of the Company herein, as determined to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance in all material respects by the Representative Company of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) The Representative Purchasers shall have received letters(i) a letter, dated (A) the date hereofFebruary 4, 2004, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative Purchasers concerning the financial and other information with respect to the Company set forth in the offering circular dated February 4, 2004 and (Bii) a letter, dated the Closing Datedate of this Agreement, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative, which letters shall each contain confirming statements Purchasers concerning the financial and other information of the type ordinarily included in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained Company set forth in the General Disclosure Package and the Final Offering Circular, except that the specific date referred to therein for the carrying out of procedures shall be no more than three (3) business days prior to the date of such letterDocument.
(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 financial conditionbusiness, results of assets, operations, business condition (financial or properties other) or prospects of the Company from that set forth in and the General Disclosure Package provided to prospective purchasers of the Notes Subsidiaries taken as a whole which, in the reasonable judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes in the manner contemplated in the General Disclosure Package or 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 3(a)(62Rule 436(g) under the Exchange Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the 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, other than the rating downgrade announced by ▇▇▇▇▇’▇ Investors Service, Inc. on the date hereof; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum 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 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 judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) The representations and warranties of the Company contained in this Agreement Purchasers shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of have received an opinion, dated the Closing Date.
(d) The Representative shall have received (i) an opinion and negative assurance letter , of ▇▇▇▇▇▇ Ropes & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in such a form and substance as may be reasonably satisfactory to the Representative, to the effect set forth in Exhibit A hereto and to such further effect as counsel to requested by the Purchasers and their counsel.
(d) The Purchasers shall have received opinions, dated the Closing Date, of local counsel from such jurisdictions and in such a form as may be reasonably request, (ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to requested by the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iv) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. Such opinions and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state thereintheir counsel.
(e) The Representative Purchasers shall have received from SkaddenCravath, Arps, Slate, Swaine & ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such the incorporation of the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities by the 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 reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representative Purchasers shall have received a certificate, dated the Closing Date, of an executive officer of the Company 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, officers shall state to on behalf of the effect set forth in 7(b)(ii) and Company that the representations and warranties of the Company in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Datecorrect, that the Company 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 date of the most recent financial statements in the General Disclosure PackageOffering Document, there has been no material adverse change, nor any development or event involving a prospective material adverse change in the financial conditionbusiness, results of assets, operations, business condition (financial or properties otherwise) or prospects of the Company and the Subsidiaries taken as a whole, except as set forth in or contemplated by the General Disclosure Package Offering Document or as described in such certificate.
(g) The Company shall have executed and delivered the Sixth Supplemental Indenture, in form and substance reasonably satisfactory to the Representative, and the Representative Purchasers shall have received executed copies thereofa 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 shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(i) On Concurrently with or prior to the Closing Date, copies issuance and sale of the Financing Documents (other than Offered Securities by the Indenture Company, the Consents shall have been obtained and the Notes) in the forms as previously delivered to the Purchasers or their counsel, Amendment and Restatement shall be in full force and effect, effect and the Purchasers shall have received true and correct copies of all documents pertaining thereto and evidence reasonably satisfactory to the Purchasers of the effectiveness thereof. There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the Amended and Restated Credit Agreement) no default or event of condition that would constitute a default (as such terms are defined in each such Financing Documentor an event that with notice or lapse of time, or both, would constitute a default) under any Financing Document the Amended and Restated Credit Agreement.
(i) The Purchasers shall have occurred received a letter, dated the Closing Date, of Deloitte & Touche LLP in form and be continuing which would reasonably be expected substance satisfactory to have a Material Adverse Effectthe Purchasers concerning the financial and other information for the years ended December 31, 2001 and 2000.
(j) The Independent Engineer Guarantors shall have delivered executed the Independent Engineer’s Reliance Letter to the Representative; and since January 30, 2015, the date of the Independent Engineer’s Quarterly Construction Report Joinder Agreement (the “Independent Engineer’s ReportJoinder Agreement”), nothing has come to ) in the attention of form attached as Exhibit A hereto and the Independent Engineer in connection with the preparation of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative.
(k) The Representative Purchasers shall have received for its own account all fees due and payable to the Representative pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”). All such amounts will be paid with proceeds of the Notes and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date.
(l) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date.
(m) On or before the Closing Date, the Representative and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form reasonably satisfactory to the Trusteecopies thereof. The Company will furnish the Representative Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Representative Purchasers reasonably request. If The Representative may in its sole discretion waive on behalf of the Purchasers compliance with any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice conditions to the Company at any time on or prior to obligations of the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5(j), 8 and 12 hereof shall at all times be effective and shall survive such terminationPurchasers hereunder.
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The several obligations of the Purchasers to purchase and pay for the Notes as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative of the following conditions precedent on or prior to the Closing Dateprecedent:
(a) The Representative shall have received letters, dated (A) the date hereof, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative and (B) the Closing Date, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative, which letters shall each contain confirming statements and information of the type ordinarily included in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package and the Final Offering Circular, except that the specific date referred to therein for the carrying out of procedures shall be no more than three (3) business days prior to the date of such letter.
(b) Subsequent to the execution and delivery of this AgreementAgreement and prior to the Closing Date, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the financial condition, results of operations, business or properties of the Company from that set forth in the General Disclosure Package provided to prospective purchasers of the Notes which, in the reasonable judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes in the manner contemplated in the General Disclosure Package or (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 in Section 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of the Closing Date.
(d) The Representative shall have received on the Closing Date (i) an opinion opinions and a negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, Representative and to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Purchasers may reasonably request, (ii) an opinion of ▇▇▇▇▇▇▇ , ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US & ▇▇▇▇▇▇▇▇▇ LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, Representative and to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iviii) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, Representative and to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. Such opinions and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state therein.
(e) The Representative shall have received on the Closing Date from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received on the Closing Date a certificate, dated the Closing Date, of an executive officer of the Company 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 to the effect set forth in Section 7(b)(ii) hereof and that the representations and warranties of the Company in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Date, that the Company 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 date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change in the financial condition, results of operations, business or properties of the Company except as set forth in the General Disclosure Package or as described in such certificate.
(g) The Company shall have executed and delivered the Sixth Eleventh Supplemental Indenture, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(h) The Company shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(i) On or prior to the Closing Date, copies of the Financing Documents (other than the Indenture and the Notes) in the forms as previously delivered to the Purchasers or their counsel, shall be in full force and effect, no default or event of default (as such terms are defined in each such Financing Document) under any Financing Document shall have occurred and be continuing which would reasonably be expected to have a Material Adverse Effect.
(j) The Independent Engineer shall have delivered the Independent Engineer’s Reliance Letter to the Representative; and since January 3031, 20152020, the date of the Independent Engineer’s Quarterly Monthly Construction Report (the “Independent Engineer’s Report”), nothing has come to the attention of the Independent Engineer in connection with the preparation of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative.
(k) The Representative shall have received for its own account all fees due and payable to the Representative pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”). All such amounts will be paid with proceeds of the Notes and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date.
(l) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date.
(m) On or before the Closing Date, the Representative and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form reasonably satisfactory to the Trustee. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative reasonably request. If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5(j), 8 and 12 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The several obligations of the Purchasers to purchase and pay for the Notes as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative of the following conditions precedent on or prior to the Closing Date:
(a) The Representative shall have received letters, dated (A) the date hereof, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative and (B) the Closing Date, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative, which letters shall each contain confirming statements and information of the type ordinarily included in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package and the Final Offering Circular, except that the specific date referred to therein for the carrying out of procedures shall be no more than three four (34) business days prior to the date of 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 financial condition, results of operations, business or properties of the Company from that set forth in the General Disclosure Package provided to prospective purchasers of the Notes which, in the reasonable judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Notes in the manner contemplated in the General Disclosure Package or (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 3(a)(62) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of the Closing Date.
(d) The Representative shall have received (i) an opinion and negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Purchasers may reasonably request, (ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇Fulbright & ▇▇▇▇▇▇▇▇ US LLPL.L.P., regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iv) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. Such opinions and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state therein.
(e) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate, dated the Closing Date, of an executive officer of the Company 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 to the effect set forth in 7(b)(ii) and that the representations and warranties of the Company in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Date, that the Company 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, that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change in the financial condition, results of operations, business or properties of the Company except as set forth in the General Disclosure Package or as described in such certificate.
(g) The Company shall have executed and delivered the Sixth Fifth Supplemental Indenture, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(h) The Company shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(i) On or prior to the Closing Date, copies of the Financing Documents (other than the Indenture and the Notes) in the forms as previously delivered to the Purchasers or their counsel, shall be in full force and effect, no default or event of default (as such terms are defined in each such Financing Document) under any Financing Document shall have occurred and be continuing which would reasonably be expected to have a Material Adverse Effect.
(j) The Independent Engineer shall have delivered the Independent Engineer’s Reliance Letter to the Representative; and since January 30April 28, 20152014, the date of the Independent Engineer’s Quarterly Construction Report (the “Independent Engineer’s Report”), nothing has come to the attention of the Independent Engineer in connection with the preparation of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative.
(k) The Representative shall have received for its own account all fees due and payable to the Representative pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”). All such amounts will be paid with proceeds of the Notes and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date.
(l) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date.
(m) On or before the Closing Date, the Representative and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Trustee. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative reasonably request. If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5(j), 8 and 12 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Cheniere Energy Partners, L.P.)
Conditions of the Obligations of the Purchasers. The several obligations of the several Purchasers to purchase and pay for the Notes as provided herein on the Closing Date are Offered Securities will be subject to the satisfaction or waiveraccuracy of the representations and warranties on the part of the Company and the Guarantors herein, as determined 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 Representative Company and the Guarantors of their obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) The Representative Purchasers shall have received lettersa letter, dated (A) the date hereofClosing Date, of each of PricewaterhouseCoopers LLP, Ernst & Young LLP and KPMG LLP, ▇▇▇▇▇▇▇ + ▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Representative and (B) the Closing Date, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative, which letters shall each contain confirming statements and information of the type ordinarily included in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package and the Final Offering Circular, except that the specific date referred to therein for the carrying out of procedures shall be no more than three (3) business days prior to the date of such letterCSFB.
(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 conditionor other), business, properties or results of operations, business or properties operations of the Company from that set forth in Company, the General Disclosure Package provided to prospective purchasers of the Notes Guarantors and their respective subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the RepresentativePurchasers 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 Notes in the manner contemplated in the General Disclosure Package or Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company or any Guarantor by any “"nationally recognized statistical rating organization” " (as defined for purposes of 3(a)(62Rule 436(g) under the Exchange Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company 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 or any Guarantor has been placed on negative outlook; (iii) any adverse 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 Purchasers including CSFB, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any 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 Purchasers including CSFB, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) The representations Purchasers and warranties of the Company contained in this Agreement Trustee shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of have received an opinion, dated the Closing Date.
(d) The Representative shall have received (i) an opinion and negative assurance letter , of ▇▇▇▇▇▇ & ▇▇and ▇▇▇▇▇ LLP, counsel for the Company, that:
(i) The Company has been duly incorporated and is an existing corporation in form good standing under the laws of Texas, with corporate power and substance reasonably satisfactory authority to own its properties and conduct its business as described in the Representative, Offering Document; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions identified by the effect set forth in Exhibit A hereto and Company to such further effect counsel 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 would not have a Material Adverse Effect.
(ii) Each subsidiary of the Company (other than Addison Energy) has been duly incorporated or formed and is an existing corporation limited liability company or partnership, as the case may be, in good standing under the laws of the jurisdiction of its incorporation or formation, with power and authority (corporate, limited liability company or partnership) to own its properties and conduct its business as described in the Offering Document; and each subsidiary of the Company (other than Addison Energy) is duly qualified to do business as a foreign corporation or entity in good standing in all other jurisdictions identified by the Company to such counsel 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 would not, individually or in the Purchasers may aggregate, have a Material Adverse Effect; all of the issued and outstanding capital stock or equity interest of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock or equity interest of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects, except for such liens, encumbrances and defects (i) as would not reasonably requestbe expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) as may arise under the Amended Credit Facility and (iii) pursuant to the Pledge Agreement.
(iii) The Offered Securities have been duly authorized by the Company.
(iv) The Indenture has been duly authorized by the Company and each Guarantor. When the Offered Securities are delivered and paid for pursuant to this Agreement and the Indenture on the Closing Date, the Indenture will have been duly executed and delivered by the Company and each Guarantor.
(v) None of the Company or the Guarantors is an opinion open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act; and none of the Company or the Guarantors 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, will be an "investment company" as defined in the Investment Company Act.
(vi) The Guaranties of the Offered Securities have been duly authorized, executed and delivered by the Guarantors.
(vii) The Guaranties of the Exchange Securities have been duly authorized by the Guarantors.
(viii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement or the Registration Rights Agreement, in each case, in connection with the consummation of the transactions contemplated therein, except (i) as may be required under the Securities Act, the TIA, the rules and regulations of the Commission thereunder and the securities or "blue sky" laws of the various states or the securities laws of any foreign jurisdiction with respect to the Exchange Offer Registration Statement or the Shelf Registration Statement (each as defined in the Registration Rights Agreement) or (ii) any consent, approval, authorization, filing, notification or other action that either has been or prior to the Closing Date will be obtained or made or which, if not made, would not, individually or in the aggregate, have a Material Adverse Effect.
(ix) Except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Company, the Guarantors or any of their respective subsidiaries or properties that, if determined adversely to the Company, the Guarantors 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 Company or the Guarantors to perform their obligations under the Operative Documents; and, to the knowledge of such counsel, no such actions, suits or proceedings are overtly threatened.
(x) The execution, delivery and performance of each of the Operative Documents by the Company and the Guarantors (to the extent a party thereto) and their compliance with the terms and provisions thereof and the consummation by those parties of the transactions contemplated thereby (including the issuance and sale of the Offered Socialities to the Purchasers) will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, any Guarantor or any of their respective subsidiaries or any of their respective properties, (ii) any agreement or instrument to which the Company, any Guarantor or any of their respective subsidiaries is a party or by which the Company, any Guarantor or any of their respective subsidiaries is bound or to which any of the properties of the Company, any Guarantor or any of their respective subsidiaries is subject or (iii) the charter or by-laws of the Company, the Guarantors or any of their respective subsidiaries, except that in the cases of clauses (i) and (ii) for such breaches, violations or defaults as would not, individually or in the aggregate, have a Material Adverse Effect; and the Company has full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement.
(xi) This Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company and each of the Guarantors. Each of the other Operative Documents has been duly authorized, executed and delivered by the Company or the Guarantors, as applicable. The Registration Rights Agreement and each othur Operative Document (other than the Indenture, the Guaranties and the Offered Securities) conforms in all material respects to the descriptions thereof contained in the Offering Circular, and the Registration Rights Agreement constitutes a valid and legally binding obligation of the Company and each of the Guarantors (to the extent a party thereto), enforceable against the Company and each Guarantor in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and except as rights to indemnity and contribution thereunder may be limited by U.S. federal or state securities laws or the policies underlying such laws.
(xii) [intentionally omitted]
(xiii) The Exchange Securities will have been duly authorized by the Company.
(xiv) Each of the Security Documents has been, or as of the Closing Date will be, duly authorized, executed and delivered by the Company and each Guarantor (to the extent a paily thereto).
(xv) There are no contracts, agreements or understandings between the Company or aiy 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 Guaranties of the Guarantors registered pursuant to any registration statement.
(xvi) The statements made in the Offering Circular under the caption "U.S. Federal Income Tax Consequences to Non-U.S. Holders," insofar as they purport to constitute summaries of matters of U.S. federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.
(xvii) No registration under the Securities Act of the Offered Securities or the Guaranties is required for the sale of the Offered Securities and the Guaranties 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.
(xviii) The Collateral Agent has a valid and perfected second-priority lien upon and security interest in (subject to liens permitted under the Indenture and the Security Documents) all right, title and interest of the applicable ▇▇▇▇▇▇▇ in the Pledged Securities (as defined in the Pledge Agreement) as security for the payment and performance of the Seciority Obligations (as defined in the Indenture).
(d) The Purchasers shall have received a statement, dated the Closing Date, of ▇▇▇▇▇▇ and ▇▇▇▇▇ LLP that, although such counsel has not undertaken to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Offering Circular, such counsel has participated in the preparation of the Offering Circular, including the review and discussion of the contents thereof, and nothing has come to such counsel's attention that has caused them to believe that the Offering Circular, as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, such counsel need not express any belief with respect to (i) financial statements and the notes and schedules thereto and (ii) any engineering, financial or statistical data.
(e) The Purchasers and the Trustee shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iv) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. Such opinions and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state therein.
(e) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate, dated the Closing Date, of an executive officer of the Company 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 to the effect set forth in 7(b)(ii) and that the representations and warranties of the Company in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Date, that the Company 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, that, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change in the financial condition, results of operations, business or properties of the Company except as set forth in the General Disclosure Package or as described in such certificate.
(g) The Company shall have executed and delivered the Sixth Supplemental Indenture, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(h) The Company shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(i) On or prior to the Closing Date, copies of the Financing Documents (other than the Indenture and the Notes) in the forms as previously delivered to the Purchasers or their counsel, shall be in full force and effect, no default or event of default (as such terms are defined in each such Financing Document) under any Financing Document shall have occurred and be continuing which would reasonably be expected to have a Material Adverse Effect.
(j) The Independent Engineer shall have delivered the Independent Engineer’s Reliance Letter to the Representative; and since January 30, 2015, the date of the Independent Engineer’s Quarterly Construction Report (the “Independent Engineer’s Report”), nothing has come to the attention of the Independent Engineer in connection with the preparation of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative.
(k) The Representative shall have received for its own account all fees due and payable to the Representative pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”). All such amounts will be paid with proceeds of the Notes and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date.
(l) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date.
(m) On or before the Closing Date, the Representative and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Cerberus Capital Management, L.P., that:
(i) When authorized, delivered and paid for pursuant to this Agreement and the Indenture, the Offered Securities will constitute valid and legally binding obligations of the Company, in form reasonably satisfactory entitled to the Trustee. benefits provided in the Indenture and enforceable in accordance with their terms and will conform to the description thereof contained in the Offering Document.
(ii) The Company will furnish Indenture and the Representative with such conformed copies of such opinionsGuaranties conform in all material respects to the descriptions thereof contained in the Offering Document.
(iii) When the Offered Securities are authorized, certificates, letters delivered and documents as the Representative reasonably request. If any condition specified in this Section 7 is not satisfied when and as required paid for pursuant to be satisfied, this Agreement may be terminated by and the Representative by notice to the Company at any time Indenture on or prior to the Closing Date, which termination shall be without liability on the part Indenture will constitute a valid and legally binding obligation of any party to any other partythe Company and the Guarantors, enforceable in accordance with its terms, except that Sections 5(jas enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), 8 reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and 12 hereof shall except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(iv) The Indenture conforms in all times material respects to the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(v) When the Offered Securities have been authorized, issued, executed and authenticated in accordance with the terms of the Purchase Agreement, the Guaranties of the Guarantors will be effective entitled to the benefits of the Indenture and shall survive such terminationconstitute a valid and legally binding obligation of each Guarantor enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(vi) The Guaranties of the Exchange Securities by the Guarantors will conform in all material respects to the description thereof contained in the Offering Document; and when the Exchange Securities have been duly authorized, issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Guarantie
Appears in 1 contract
Conditions of the Obligations of the Purchasers. The several obligations of the several Purchasers to purchase and pay for the Notes as provided herein on the Closing Date are Offered Securities will be subject to the satisfaction or waiveraccuracy of the representations and warranties on the part of the Company and the Guarantors herein, as determined 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 Representative Company and the Guarantors of their respective obligations hereunder and to the following additional conditions precedent on or prior to the Closing Dateprecedent:
(a) The Representative shall have received letters, dated (A) On the date hereofhereof (prior to the execution of this Agreement) and also at the Closing Date, of Ernst & Young LLP and KPMG LLPshall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representative and (B) the Closing Dateyou, of Ernst & Young LLP and KPMG LLP, in form and substance satisfactory to the Representative, which letters shall each contain confirming statements and information of the type ordinarily included effect set forth in “accountants’ comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the General Disclosure Package and the Final Offering Circular, except that the specific date referred to therein for the carrying out of procedures shall be no more than three (3) business days prior to the date of such letterSchedule D hereto.
(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 conditionor other), business, properties or results of operations, business or properties operations of the Company from that set forth in and its subsidiaries (including the General Disclosure Package provided to prospective purchasers of the Notes Subsidiary Guarantors) taken as one enterprise which, in the reasonable judgment of a majority in interest of the RepresentativePurchasers, 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 Notes in the manner contemplated in the General Disclosure Package or Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company or any Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of 3(a)(62Rule 436(g) under the Exchange Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company 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 or any Guarantor has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a majority in interest of the Purchasers, including CSFB, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company or any Guarantor on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Purchasers, including CSFB, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) The representations and warranties of the Company contained in this Agreement Purchasers shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of have received an opinion, dated the Closing Date.
(d) The Representative shall have received (i) an opinion , in form and negative assurance letter substance reasonably satisfactory to you, of ▇▇▇▇▇▇ Irell & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Guarantors, to the effect set forth in Schedule E.
(d) The Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to you, of ▇▇▇▇▇ Means, Vice President and General Counsel of the RepresentativeCompany, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Schedule F.
(e) The Purchasers may reasonably request, (ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchasers may reasonably request, (iii) an opinion of Norton ▇▇▇▇ ▇shall have received from ▇▇▇▇▇▇▇▇ US LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Purchasers may reasonably request and (iv) an opinion of & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., Louisiana counsel for the Company, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Purchasers may reasonably request. Such opinions and letter shall be dated as of the Closing Date and rendered to the Purchasers at the request of the Company and shall so state therein.
(e) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such the incorporation of the Company, the validity of the Offered Securities, the Offering Circular, the exemption from registration for the offer and sale of the Offered Securities with the Guarantees endorsed thereon to the several Purchasers and the resales by the several Purchasers as contemplated hereby and other related matters as the Representative CSFB may require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representative Purchasers shall have received a certificate, dated the Closing Date, of an executive officer the Chief Executive Officer or the President and the Chief Financial Officer or Treasurer of the Company and a principal financial or accounting officer each Guarantor in their capacity as officers of the Company and the Guarantors in which such officers, to the best of their knowledge after reasonable investigation, shall state to the effect set forth in 7(b)(ii) and that that: the representations and warranties of the Company or the Guarantor, as the case may be, in this Agreement were true and correct as of the Applicable Time and are true and correct as of the Closing Date, that correct; the Company or such Guarantor 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, that; and, subsequent to the date of the most recent financial statements in the General Disclosure PackageOffering Document, there has been no material adverse change in the financial conditionMaterial Adverse Change, results of operationsnor any development or event involving a prospective Material Adverse Change, business or properties of the Company except as set forth in the General Disclosure Package Offering Document, the Exchange Act Reports or as described in such certificate.
(g) The Company Replacement Credit Facility and the New Holdings Notes Purchase Agreements, each, (i) shall be in form satisfactory to CSFB and Citigroup, (ii) shall have been duly authorized, executed and delivered by the Sixth Supplemental Indentureparties thereto, in form (iii) shall constitute a valid, binding and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(h) The Company shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(i) On or prior to the Closing Date, copies enforceable obligation of the Financing Documents (other than the Indenture parties thereto and the Notes) in the forms as previously delivered to the Purchasers or their counsel, shall be in full force and effect, (iv) no event of default or event which upon notice or lapse of time, or both, would become an event of default on the part of any party thereto shall exist thereunder and (as such terms are defined in each such Financing Documentv) under any Financing Document the closing of the transactions set forth or contemplated therein shall have occurred and be continuing which would reasonably be expected to have a Material Adverse Effect.
(j) The Independent Engineer shall have delivered the Independent Engineer’s Reliance Letter to the Representative; and since January 30, 2015, the date of the Independent Engineer’s Quarterly Construction Report (the “Independent Engineer’s Report”), nothing has come to the attention of the Independent Engineer in connection or will occur simultaneously with the preparation closing of the Independent Engineer’s Report which would cause the Independent Engineer to believe that the Independent Engineer’s Report, as of its date, was inaccurate or misleading in any material respect, as evidenced by a certificate of an authorized representative of the Independent Engineer, dated the Closing Date, confirming the matters set forth in this paragraph in form and substance reasonably satisfactory to the Representative.
(k) The Representative shall have received for its own account all fees due and payable to the Representative pursuant to this Agreement and all such costs and expenses for which invoices have been presented (collectively, the “Closing Date Transaction Costs”). All such amounts will be paid with proceeds of the Notes and will be reflected in the funding instructions given by the Company to the Purchasers on or before the Closing Date.
(l) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date.
(m) On or before the Closing Date, the Representative and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have received such information, documents and letters as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any Offered Securities. Each of the representations Company and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(n) The Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form reasonably satisfactory to the Trustee. The Company Guarantors will furnish the Representative Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Representative Purchasers reasonably request. If CSFB may in its sole discretion waive on behalf of the Purchasers compliance with any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice conditions to the Company at any time on or prior to obligations of the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5(j), 8 and 12 hereof shall at all times be effective and shall survive such terminationPurchasers hereunder.
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