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 Subsidiary Guarantor herein, to the accuracy of the statements of officers of the Company and each Subsidiary Guarantor made pursuant to the provisions hereof, to the performance by the Company and each of the Subsidiary Guarantors of 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, independent public accountants for the Company, in form and substance reasonably satisfactory to the Representative and PricewaterhouseCoopers LLP. (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 other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the 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 Offered Securities pursuant to this Agreement; (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 Section 3(a)(62) of 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; (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 acts 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 the sale of and payment for the Offered Securities pursuant to this Agreement. (c) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Company, shall have furnished to the Representative, as of the Closing Date, its opinion, dated the Closing Date, as applicable, substantially to the effect set forth in Exhibit A. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to the incorporation of the Company and all other matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. (d) On the Closing Date, the Representative shall have received, in form and substance reasonably satisfactory to them, the favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the Company and certain of the Subsidiary Guarantors, dated the Closing Date, substantially to the effect set forth in Exhibit B. (e) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, 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. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ LLP may rely as to all matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., referred to above. (f) The Purchasers shall have received a certificate, dated the Closing Date, of the Chief Financial Officer, Treasurer or any Vice President of the Company, acting in such capacity (and not individually), shall state that the representations and warranties of the Company in this Agreement are true and correct as if made on and as of such date, that the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such date (after giving effect to the offering and sale of the Offered Securities), and that, subsequent to the date as of which information is given in the Offering Documents (as amended or supplemented), as of the date of such certificate, there has not been any change in such information that would have a Material Adverse Effect. (g) The Purchasers shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection. (h) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Company, certified as of a recent date by the Secretary of State of the State of Oklahoma, (ii) a certificate of good standing for the Company, dated as of a recent date, from such Secretary of State and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which the Company is qualified to do business as a foreign corporation under the laws of such state. (i) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation (or similar organizational document), including all amendments thereto, of each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized, (ii) a certificate of good standing for each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which each such subsidiary is qualified to do business as a foreign corporation (or similar entity) under the laws of each such state. (j) The Purchasers shall have received a counterpart of each Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company and each Subsidiary Guarantor. The Company will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. The Representative may in its sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers 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 Firm Securities on the First Closing Date and for the Optional Securities on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and each Subsidiary Guarantor herein, to the accuracy of the statements of officers of the Company and each Subsidiary Guarantor made pursuant to the provisions hereof, to the performance by the Company and each of the Subsidiary Guarantors of 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, independent public accountants for the Company, in form and substance reasonably satisfactory to the Representative and PricewaterhouseCoopers LLP.
(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 other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the 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 Offered Securities pursuant to this Agreement; (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 Section 3(a)(62) of 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; (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 acts 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 the sale of and payment for the Offered Securities pursuant to this Agreement.
(c) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Company, shall have furnished to the Representative, as of the First Closing Date and each Optional Closing Date, its opinion, dated the First Closing Date or each Optional Closing Date, as applicable, substantially to the effect set forth in Exhibit A. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to the incorporation of the Company and all other matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ McAfee & ▇▇▇▇▇▇, L.L.P.a Professional Corporation.
(d) On the First Closing Date and each Optional Closing Date, the Representative shall have received, in form and substance reasonably satisfactory to them, the favorable opinion of ▇▇▇▇▇▇▇ McAfee & ▇▇▇▇▇▇, L.L.P.a Professional Corporation, counsel to the Company and certain of the Subsidiary Guarantors, dated the First Closing Date and each Option Closing Date, substantially to the effect set forth in Exhibit B.
(e) On the First Closing Date and each Optional Closing Date, the Representative shall have received, in form and substance reasonably satisfactory to them, the favorable opinion of J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Assistant General Counsel of the Company, dated the First Closing Date and each Option Closing Date, substantially to the effect set forth in Exhibit C.
(f) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, 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. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ LLP may rely as to all matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ McAfee & ▇▇▇▇▇▇, L.L.P.a Professional Corporation, referred to above.
(fg) The Purchasers shall have received a certificate, dated the Closing Date, of the Chief Financial Officer, Treasurer or any Vice President of the Company, acting in such capacity (and not individually), shall state that the representations and warranties of the Company in this Agreement are true and correct as if made on and as of such date, that the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such date (after giving effect to the offering and sale of the Offered Securities), and that, subsequent to the date as of which information is given in the Offering Documents (as amended or supplemented), as of the date of such certificate, there has not been any change in such information that would have a Material Adverse Effect.
(gh) The Purchasers shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(hi) On or prior to the date of this Agreement, the Purchasers shall have received lockup letters, substantially to the effect set forth in Exhibit D, from the persons set forth on Schedule E hereto.
(j) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Company, certified as of a recent date by the Secretary of State of the State of Oklahoma, (ii) a certificate of good standing for the Company, dated as of a recent date, from such Secretary of State and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which the Company is qualified to do business as a foreign corporation under the laws of such state.
(ik) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation (or similar organizational document), including all amendments thereto, of each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized, (ii) a certificate of good standing for each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which each such subsidiary is qualified to do business as a foreign corporation (or similar entity) under the laws of each such state.
(j) The Purchasers shall have received a counterpart of each Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company and each Subsidiary Guarantor. The Company will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. The Representative may in its sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers hereunder, whether in respect of an Optional Closing Date or otherwise.
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 Subsidiary Guarantor hereinCompany, to the accuracy of the statements of officers of the Company and each Subsidiary Guarantor made pursuant to the provisions hereof, to the performance by the Company and each of the Subsidiary Guarantors of their respective obligations hereunder hereunder, in each case, in all material respects, and to the following additional conditions precedent:
(a) The Purchasers shall have received a lettercomfort letter or letters, dated the date of this Agreement, of PricewaterhouseCoopers LLPMazars & G▇▇▇▇▇▇ and B▇▇▇▇▇▇ Frinault & Autres Ernst & Young, independent public accountants for on the Companyone hand, and B▇▇▇▇▇▇ Frinault & Autres and Ernst & Young Audit, on the other hand, in form and substance reasonably satisfactory to the Representative and PricewaterhouseCoopers LLPPurchasers concerning the financial information with respect to the Company set forth in the Offering Document.
(b) The Purchasers shall have received a comfort letter or letters, dated the date of this Agreement, of Ernst & Young AS, in form and substance satisfactory to the Purchasers concerning the financial information with respect to Exploration Resources set forth in the Offering Document.
(c) The Purchasers shall have received a comfort letter or letters, dated the date of this Agreement, of Ernst & Young in form and substance satisfactory to the Purchasers concerning the financial information with respect to Arabian Geophysical & Surveying Company set forth in the Offering Document.
(d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the RepresentativePurchasers, 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 pursuant to this AgreementSecurities; (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 Section 3(a)(62Rule 436(g) of under the Exchange Securities Act), or any public announcement or any indication given to the Company 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 U.S., French, international, financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the RepresentativePurchasers, 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, the Luxembourg Stock Exchange or the Eurolist by Euronext Paris or any setting of minimum prices for trading on any 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, New York, European Union, English or New York French authorities; (vi) any major disruption of settlements of securities or clearance services in the United States, the European Union, the United Kingdom or France; or (vii) any attack on, outbreak or escalation of hostilities hostilities, declaration of war or acts act of terrorism involving the United States, any declaration of war by Congress the European Union, the United Kingdom or France, or any other national or international calamity or emergency if, in the judgment of the RepresentativePurchasers, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities pursuant to this AgreementSecurities.
(c) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Company, shall have furnished to the Representative, as of the Closing Date, its opinion, dated the Closing Date, as applicable, substantially to the effect set forth in Exhibit A. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to the incorporation of the Company and all other matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
(d) On the Closing Date, the Representative shall have received, in form and substance reasonably satisfactory to them, the favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the Company and certain of the Subsidiary Guarantors, dated the Closing Date, substantially to the effect set forth in Exhibit B.
(e) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinionsan opinion, dated the Closing Date, of Linklaters, counsel for the Company, covering substantially the items set forth in form and substance reasonably satisfactory to the Representative, and the Exhibit A hereto. The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ LLP may rely as to all matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., referred to above.
(f) The Purchasers shall have received a certificateopinions, dated the Closing Date, from local counsel for the Company, from local counsel in each of the countries of incorporation of the Guarantors with respect to the valid existence, power and authority, due authorization of the Guarantors and other related matters as the Purchasers may require, in each case satisfactory to the Purchasers. The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Purchasers shall have received from V▇▇▇▇▇ & E▇▇▇▇▇ R.L.L.P., U.S. counsel for the Purchaser, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Offering Circular, the exemption from registration for the offer and sale of the Securities by the Company to the Purchasers and the resales by the Purchasers as contemplated hereby and other related matters as the Purchasers may require, in each case satisfactory to the Purchasers. The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Purchasers shall have received certificates, dated the Closing Date, of the Chief Financial Officer, Treasurer principal executive officer and the principal financial or any Vice President accounting officer of the Company, acting in which such capacity (and not individually), officers shall state that the representations and warranties of the Company in this Agreement are true and correct correct, certify as if made on to the outstanding Net debt and Shareholders’ equity (as such terms are described in the Offering Document) as of such datea date that is reasonably acceptable to the Purchasers, that the Company has performed in complied with all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date (after giving effect to the offering and sale of the Offered Securities)Closing Date, and that, subsequent to the date as respective dates of which information is given the most recent financial statements in the Offering Documents Document there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (as amended financial or supplementedother), as business, prospects, properties or results of operations of the date of such certificate, there has not been any change Company and its subsidiaries taken as a whole except as set forth in such information that would have a Material Adverse Effectthe Offering Document.
(gi) The Purchasers shall have received a lettercomfort letter or letters, dated such the Closing Date, of PricewaterhouseCoopers LLP Mazars & G▇▇▇▇▇▇ and B▇▇▇▇▇▇ Frinault & Autres Ernst & Young on the one hand and B▇▇▇▇▇▇ Frinault & Autres and Ernst & Young Audit on the other hand which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(h) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Company, certified as of a recent date by the Secretary of State of the State of Oklahoma, (ii) a certificate of good standing for the Company, dated as of a recent date, from such Secretary of State and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which the Company is qualified to do business as a foreign corporation under the laws of such state.
(i) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation (or similar organizational document), including all amendments thereto, of each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized, (ii) a certificate of good standing for each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which each such subsidiary is qualified to do business as a foreign corporation (or similar entity) under the laws of each such state.
(j) The Purchasers shall have received a counterpart comfort letter or letters, dated the Closing Date, of Ernst & Young AS which meets the requirements of subsection (b) of this Section.
(k) The Purchasers shall have received a comfort letter or letters, dated the Closing Date of Ernst & Young which meets the requirements of subsection (c) of this Section.
(l) At the Closing Date, the Securities shall have been designated for trading on The Portal Market and cleared for settlement at DTC.
(m) At the Closing Date, application shall have been made to list the Securities on the Euro MTF Market of the Luxembourg Stock Exchange, and such application shall not have been withdrawn or rejected or shall have been approved for listing subject to official notice of issuance.
(n) At the Closing Date, the Securities shall be rated at least Ba3 by S&P and BB- by Moody’s, and the Company shall have delivered to the Purchasers a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Purchasers, confirming that the Securities have such ratings.
(o) As of the Closing Date, the Company, the Guarantors and the Trustee shall have entered into the Indenture.
(p) As of the Closing Date, the Company and the Guarantors shall have entered into the Registration Rights Agreement, in form and substance satisfactory to the Purchasers.
(q) The Company and its subsidiaries shall have (i) received on or prior to the Closing Date all consents, approvals, authorisations and other orders of, or qualifications with, each court, regulatory authority, governmental body or agency, or third party, and (ii) given all notices required under relevant law and any material agreements, in each case, required to execute, deliver and perform their respective obligations under the Indenture, the Securities, the Guarantees, the Exchange Securities, the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer this Agreement, except, in each case, such as may be required under state securities laws and except for the order of the Company and each Subsidiary GuarantorCommission declaring the Exchange Offer Registration Statement or Shelf Registration Statement effective. The Company will furnish the Purchasers with such copies of such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. The Representative Purchasers may in its their sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers 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 subject, after giving effect to the Transactions, to the accuracy of the representations and warranties on the part of the Company and each Subsidiary Guarantor herein, to the accuracy of the statements of officers of the Company and each Subsidiary Guarantor made pursuant to the provisions hereof, to the performance by the Company and each of the Subsidiary Guarantors of their respective its obligations hereunder and to the following additional conditions precedent:
(a) The At the time of execution of this Agreement, the Purchasers shall have received a letter, dated the date of this Agreement, of PricewaterhouseCoopers letter from Deloitte & Touche LLP, independent public accountants for the Company, in form and substance reasonably satisfactory to the Representative Representatives, addressed to the Purchasers and PricewaterhouseCoopers LLPdated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Offering Memorandum, as of a date not more than three (3) days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(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 other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise a whole which, in the 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 Offered Securities pursuant to this AgreementSecurities; (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 Section 3(a)(62Rule 436(g) of 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); (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 RepresentativeRepresentatives, 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; States or (vii) any attack on, outbreak or escalation of hostilities or acts 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 RepresentativeRepresentatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities pursuant to this AgreementSecurities.
(c) The Purchasers shall have received an opinion and negative assurance letter, each dated the Closing Date, of the General Counsel of the Company, substantially in the form set forth in Exhibit A-1 and Exhibit A-2 hereto.
(d) The Purchasers shall have received an opinion and negative assurance letter, each dated the Closing Date, of S▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Company, shall have furnished to the Representative, as of the Closing Date, its opinion, dated the Closing Date, as applicable, substantially to the effect set forth in Exhibit A. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to the incorporation of the Company and all other matters governed by Oklahoma law upon the opinion of & B▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
(d) On the Closing Date, the Representative shall have received, in form and substance reasonably satisfactory to them, the favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.LLP, counsel to for the Company and certain of the Subsidiary Guarantors, dated the Closing DateCompany, substantially to in the effect form set forth in Exhibit B.B-1 and Exhibit B-2 hereto.
(e) The Purchasers shall have received an opinion, dated the Closing Date, of D▇▇▇▇▇ G▇▇▇▇▇▇ PLLC, Michigan counsel for the Company, substantially in the form set forth in Exhibit C hereto.
(f) The Purchasers shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇, ▇▇▇▇▇ & S▇▇▇▇▇▇▇, P.C., federal energy regulatory counsel for the Company, substantially in the form set forth in Exhibit D hereto.
(g) The Purchasers shall have received from CravathMilbank, Swaine Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativevalidity of the Offered Securities, the General Disclosure Package and the Final Offering Memorandum, the exemption from registration for the offer and sale of the Offered Securities by the Company to the Purchasers and the resales by the Purchasers as contemplated hereby and other related matters as the 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. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ LLP may rely as to all matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., referred to above.
(fh) The Purchasers shall have received a certificate, dated the Closing Date, of the Chief Financial Officer, Treasurer Executive Officer or any Vice President and a principal financial or accounting officer of the CompanyCompany in which such officers, acting in such capacity (and not individually)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 as if made on and as of such datecorrect, that the Company has performed in complied with all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date (after giving effect to the offering and sale of the Offered Securities)Closing Date, and that, subsequent to the date as of which information is given the most recent financial statements in the General Disclosure Package there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package and the Final Offering Documents Memorandum.
(as amended or supplementedi) With respect to the letter of Deloitte & Touche LLP referred to in paragraph (a) and delivered to the Purchasers concurrently with the execution of this Agreement (the “Initial Letter”), the Purchasers shall have received letters (each, a “Bring-Down Letter”) of such accountants, addressed to the Purchasers and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of such certificatethe Bring-Down Letter (or, there has not been any change with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in such information that would have a Material Adverse Effect.
(g) The Purchasers shall have received a letterthe Final Offering Memorandum, dated such Closing Date, as of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three (3) days prior to such Closing Date for the purposes of this subsection.
(h) The Purchasers shall have received (i) a copy date of the certificate or articles Bring-Down Letter), the conclusions and findings of incorporation, including all amendments thereto, of such firm with respect to the Company, certified as of a recent date financial information and other matters covered by the Secretary of State of the State of Oklahoma, (ii) a certificate of good standing for the Company, dated as of a recent date, from such Secretary of State Initial Letter and (iii) a certificate, dated as of a recent date, of confirming in all material respects the Secretary of State of each state conclusions and findings set forth in which the Company is qualified to do business as a foreign corporation under the laws of such state.
(i) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation (or similar organizational document), including all amendments thereto, of each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized, (ii) a certificate of good standing for each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which each such subsidiary is qualified to do business as a foreign corporation (or similar entity) under the laws of each such stateInitial Letter.
(j) The Asset Acquisition shall have closed or close concurrently with the sale of the Offered Securities and each condition to the closing thereof contemplated by the Asset Acquisition Documents will, on or prior to the Closing Date, have been satisfied or waived. The Purchasers shall have received a counterpart of each Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer conformed copies of the Company and each Subsidiary GuarantorAsset Acquisition Documents. The Company will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers Representatives shall reasonably request. The Representative Representatives may in its their sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers 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 Notes will be subject to the accuracy of the representations and warranties on the part of the Company Issuer, TILC and each Subsidiary Guarantor Trinity herein, to the accuracy of the statements of officers of the Company Issuer, TILC and each Subsidiary Guarantor ▇▇▇▇▇▇▇ made pursuant to the provisions hereof, to the performance by the Company and each of the Subsidiary Guarantors Issuer, TILC and Trinity of their respective its obligations hereunder and to the following additional conditions precedentprecedent on or prior to the Closing Date:
(a) The Purchasers shall have received from Deloitte LLP a letterletter or letters, dated as of the date of this Agreement, the Preliminary Offering Circular and as of PricewaterhouseCoopers LLP, independent public accountants for the CompanyApplicable Time, in form and substance reasonably satisfactory to the Representative Initial Purchaser and PricewaterhouseCoopers LLPtheir counsel, stating in effect that they have performed certain specified procedures, all of which have been agreed to by the Purchasers, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Preliminary Offering Circular and the final Offering Circular agrees with the corresponding information included on or derived from a certain computer-generated railroad car lease data file and related record layout, excluding any questions of legal interpretation.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company Issuer, TILC, TRLWT or Trinity and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the RepresentativePurchasers, including the Initial Purchaser or any of its affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities pursuant to this AgreementNotes; (ii) any downgrading in the rating of any debt securities of the Company TILC or Trinity by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) of 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 TILC or Trinity (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Company Issuer, Trinity or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representativemajority in interest of the Purchasers including the Initial Purchaser or any of its affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered SecuritiesNotes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or ; (v) any suspension of trading of any securities of the Company Issuer, TILC or Trinity or any of its affiliates on any exchange or in the over-the-counter market; (vvi) any banking moratorium declared by U.S. Federal or New York authorities; (vivii) any major disruption of settlements of securities or clearance services in the United States; or (viiviii) any attack on, outbreak or escalation of hostilities or acts 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 majority in interest of the RepresentativePurchasers including the Initial Purchaser or any of its affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities pursuant to this AgreementNotes.
(c) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Company, shall have furnished to the Representative, as of the Closing Date, its opinion, dated the Closing Date, as applicable, substantially to the effect set forth in Exhibit A. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to the incorporation of the Company and all other matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
(d) On the Closing Date, the Representative shall have received, in form and substance reasonably satisfactory to them, the favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the Company and certain of the Subsidiary Guarantors, dated the Closing Date, substantially to the effect set forth in Exhibit B.
(e) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, 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. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ LLP may rely as to all matters governed by Oklahoma law upon the opinion of ▇(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇Price P.C., L.L.P.counsel for the Issuer, (ii) the Associate General Counsel and Secretary of Trinity, and (iii) such other law firms acceptable to the Initial Purchaser and its counsel, to the effect that:
(i) The Issuer has been duly formed and is an existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information; and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(ii) TRLWT has been duly formed and is an existing Delaware statutory trust in good standing under the laws of the state of Delaware, with power and authority (as a statutory trust and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and TRLWT is duly qualified to do business as a statutory trust in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification;
(iii) Each of TILC and Trinity has been duly incorporated and is an existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of TILC and Trinity 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;
(iv) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer, TILC, TRLWT or Trinity, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer, TILC, TRLWT or Trinity, as applicable, enforceable against the Issuer, TILC, TRLWT or Trinity, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(v) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to above.in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(fvi) Each of the Issuer, TILC, TRLWT and Trinity has been duly incorporated or formed, and is an existing corporation, statutory trust or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer, TILC, TRLWT and Trinity is duly qualified to do business as a foreign corporation, statutory trust or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents;
(vii) The Purchasers shall have received a certificateIssuer is not and, dated the Closing Date, of the Chief Financial Officer, Treasurer or any Vice President of the Company, acting in such capacity (and not individually), shall state that the representations and warranties of the Company in this Agreement are true and correct as if made on and as of such date, that the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such date (after giving effect to the offering and sale of the Offered Securities)Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” as defined in the Investment Company Act;
(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 in connection with the issuance or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws and except for the filing of a notice of sale on Form D as required by Rule 503 of Regulation D of the Securities Act;
(ix) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC, TRLWT, Trinity or any of their respective subsidiaries, or any of their respective properties that, subsequent if determined adversely to the date as Issuer, TILC, TRLWT, Trinity or any of which information is given their respective subsidiaries, would individually or in the Offering Documents (as amended or supplemented), as of the date of such certificate, there has not been any change in such information that would aggregate have a Material Adverse Effect., or would materially and adversely affect the ability of the Issuer, TILC, TRLWT or Trinity to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(gx) The Purchasers shall execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer, TILC, TRLWT or Trinity is a party, and this Agreement and the issuance and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, TRLWT or Trinity or any of their properties, or any agreement or instrument to which the Issuer, TILC, TRLWT or Trinity is a party or by which the Issuer, TILC, TRLWT or Trinity is bound or to which any of the properties of the Issuer, TILC, TRLWT or Trinity is subject, or the organizational or formation documents of the Issuer, TILC, TRLWT or Trinity, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(xi) Such counsel have received a letterno reason to believe that the Final Offering Document, dated such or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of PricewaterhouseCoopers LLP which meets a material fact or omitted to state any material fact necessary to make the requirements of subsection (a) of this Section, except statements therein not misleading; and such counsel have no reason to believe that the information specified date referred to in such subsection will be a date not more than three days prior schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date for Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the purposes of this subsection.statements therein not misleading;
(hxii) The Purchasers shall have received (i) a copy of the certificate or articles of incorporationThis Agreement has been duly authorized, including all amendments thereto, of the Company, certified as of a recent date by the Secretary of State of the State of Oklahoma, (ii) a certificate of good standing for the Company, dated as of a recent date, from such Secretary of State and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which the Company is qualified to do business as a foreign corporation under the laws of such state.
(i) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation (or similar organizational document), including all amendments thereto, of each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized, (ii) a certificate of good standing for each of the Subsidiary Guarantors, certified as of a recent date by the Secretary of State of the state in which such subsidiary is organized and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which each such subsidiary is qualified to do business as a foreign corporation (or similar entity) under the laws of each such state.
(j) The Purchasers shall have received a counterpart of each Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer each of the Company Issuer, TILC, TRLWT and each Subsidiary Guarantor. The Company will furnish Trinity;
(xiii) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the several Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Purchasers with such conformed copies of such opinionsin the manner contemplated by this Agreement, certificatesto register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xiv) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, letters and documents as the Purchasers reasonably request. “The Representative may in its sole discretion waive on behalf Railcars”, “The Lessees”, “The Leases”, “The Manager”, “Description of the Purchasers compliance with any conditions to the obligations Management Agreement”, “Description of the Purchasers hereunder.Administrative Services Agreement”, “Description of the Asset Transfer Agreement”, “Description of the Offered Notes and Indenture” and “Description of the Parent Undertaking Agreement”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized;
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 each the Subsidiary Guarantor Guarantors herein, to the accuracy of the statements of officers of the Company Issuer and each the Subsidiary Guarantor Guarantors made pursuant to the provisions hereof, to the performance by the Company Issuer and each of the Subsidiary Guarantors of 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, Agreement and attaching a form of PricewaterhouseCoopers LLP, independent public accountants for the Companyletter to be delivered pursuant to subsection (j) of this Section from Coopers & ▇▇▇▇▇▇▇, in form and substance reasonably satisfactory to the Representative Purchasers concerning the financial information with respect to the Issuer and PricewaterhouseCoopers LLPthe Subsidiary Guarantors (and their predecessors) set forth in the Offering Document.
(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 other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the 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 Offered Securities pursuant to this Agreement; (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 Section 3(a)(62) of 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; (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 RepresentativeCSFBC, 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 other), business, properties or results of operations of the Issuer, the Subsidiary Guarantors or their respective subsidiaries which, in the judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ivB) any material downgrading in the rating of any debt securities of the Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, Exchange or any setting of minimum prices for trading on such exchangeexchange or such market, or any suspension of trading of any securities of the Company Issuer on any exchange or in the over-the-counter market; (vD) any banking moratorium declared by U.S. Federal or New York authorities; or (viE) any major disruption of settlements of securities or clearance services in the United States; or (vii) any attack on, outbreak or escalation of major hostilities or acts 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 judgment of the RepresentativeCSFBC, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities pursuant to this AgreementSecurities.
(c) The Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇, U.S. and Liberian maritime counsel for the Issuer and the Subsidiary Guarantors, that:
(i) assuming due authorization, execution and delivery by the Issuer and the non-Liberian Subsidiary Guarantors, as the case may be, the Offered Securities conform to the Companydescription thereof contained in the Offering Document and each of the Security Documents, shall have furnished the Warrant Agreement and the Offered Securities constitute valid and legally binding obligations of the Issuer and the Subsidiary Guarantors, as the case may be, 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;
(ii) neither the Issuer nor any of the Subsidiary Guarantors is and, after giving effect to the Representativeoffering 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;
(iii) no consent, approval, authorization or order of, or filing with, any Liberian, New York or Federal governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Securities by the Issuer and the issuance of the Guarantees by the Subsidiary Guarantors, except such as may be required under state securities laws and except for the filing and registration of the Liberian Mortgages in the Office of the Deputy Commissioner of Maritime Affairs of the Republic of Liberia;
(iv) the execution, delivery and performance by the Issuer and the Subsidiary Guarantors of each of the Security Documents, the Warrant Agreement, this Agreement and the Registration Rights Agreement, and the issuance and sale of the Offered Securities and the issuance of Guarantees by the Subsidiary 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, rule, regulation or order of any Liberian, New York or U.S. Federal governmental agency or body or any court having jurisdiction over the Issuer or the Subsidiary Guarantors or any of their respective properties, or any agreement or instrument to which the Issuer or the Subsidiary Guarantors is a party or by which the Issuer or the Subsidiary Guarantors is bound or to which any of the properties of the Issuer or the Subsidiary Guarantors is subject, or the charter or by-laws (or other organizational documents) of the Liberian Subsidiary Guarantors;
(v) such counsel has no reason to believe that the Offering Document, 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 light of the circumstances under which they were made, not misleading; the descriptions in the Offering Document of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information called for with respect to such statutes, legal and governmental proceedings and contracts and other documents and fairly summarize the matters referred to therein; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical data contained in the Offering Document;
(vi) it is not necessary in connection with (A) the offer, sale and delivery of the Offered Securities by the Issuer to the Purchasers pursuant to this Agreement or (B) the resales of the Offered Securities by the Purchasers in the manner contemplated by this Agreement, to register the Offered Securities under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(vii) assuming the Trustee is without notice of any "adverse claim" as such term is defined in the Uniform Commercial Code of New York (the "NYUCC"), upon execution and delivery of the Indenture by the Issuer and the delivery to the Trustee of certificates evidencing the Pledged Stock together with stock powers relating thereto executed in blank, the Trustee will have a valid, first priority perfected security interest in the Pledged Stock, free and clear of any liens or encumbrances;
(viii) the Escrow Agreement, the Indenture, the Insurance Assignments and each Liberian Mortgage will create in favor of the Escrow Agent, the Trustee and the Collateral Agent, respectively, a valid security interest in the Issuer's or each Liberian Subsidiary Guarantor's, as the case may be, right, title and interest in and to the Collateral (as defined in the Indenture) covered thereby, and no filing is necessary in the State of New York under the NYUCC to perfect such security interest.
(ix) each of the Liberian Subsidiary Guarantors has been duly incorporated, is validly existing as a corporation in good standing under the laws of Liberia and has the corporate power and authority to own its property and to conduct its business as described in the Offering Document; and all the issued shares of capital stock of [insert names of Liberian subsidiaries] have been duly authorized and validly issued and, assuming issuance against payment therefor, are fully paid and nonassessable and registered in the name of the Issuer;
(x) each of the Liberian Subsidiary Guarantors is the registered owner of the Mortgaged Vessel listed opposite its name in the Offering Document, free and clear of any Liens (as such terms is defined in the Indenture and except as permitted by the Indenture) of record, except for the lien of a mortgage (and the related assignments of earnings and insurance) held by the holders of certain indebtedness outstanding on the Mortgaged Vessels (the "Existing Indebtedness") to be repaid on the Closing Date and for the lien of the related Liberian Mortgage;
(xi) each Liberian Charter, if applicable, has been duly authorized, executed and delivered by the applicable Liberian Subsidiary Guarantor;
(xii) the statements made in the Offering Document under "Enforcement of Civil Liabilities", "Risk Factors--Enforcement of Mortgages", "Description of the Notes--Guarantees", "The Mortgages", and "Certain United States Federal Income Tax Consequences", to the extent that they constitute matters of law or legal conclusions, fairly present the information disclosed therein in all material respects;
(xiii) upon the recording of a Mortgage with respect to a Liberian Mortgaged Vessel in the Office of the Deputy Commissioner of Maritime Affairs of the Republic of Liberia at the Port of New York in accordance with the laws of Liberia on the Closing Date, such Mortgage will create a valid and enforceable first preferred ship mortgage lien covering the related Liberian Mortgaged Vessel which it purports to create, with such Mortgage being the only preferred mortgage lien on the related Liberian Mortgaged Vessel;
(xiv) the security interests created by the Security Documents do not require any action to be taken under or pursuant to the laws of Liberia (except as contemplated by clause (xiv) above) or the State of New York, in order to create or perfect such security interests or to permit the Trustee, the Collateral Agent or the Escrow Agent, as the case may be, to enforce its rights under the Security Documents creating the same;
(xv) the choice of New York law to govern this Agreement, the Registration Rights Agreement, the Indenture, the Warrant Agreement, the Escrow Agreement, the Collateral Agency Agreement, the Insurance Assignments and the Offered Securities constitutes a valid choice of law insofar as the law of Liberia is concerned. The submission by the Issuer and the Liberian Subsidiary Guarantors to the non-exclusive jurisdiction of any Federal or state court in the Borough of Manhattan, The City of New York (a "New York court"), is a valid submission insofar as the law of Liberia is concerned;
(xvi) in a suit on the merits brought before a Liberian court, a Liberian court will respect and enforce the agreement of the parties as to judgment in a foreign currency;
(xvii) a judgment granted by a foreign court against the Issuer or any Subsidiary Guarantor may be enforced in Liberia without a retrial on the merits of the matter;
(xviii) neither the Issuer nor the Subsidiary Guarantors nor any of their respective properties has any immunity from jurisdiction of any court or from any legal process under the laws of Liberia; and
(xix) the Liberian Mortgages conform in all material respects to the description thereof in the Offering Document.
(d) The Purchasers shall have received an opinion, dated the Closing Date, as applicable, substantially to the effect set forth in Exhibit A. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to the incorporation of the Company and all other matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
(d) On special Cayman counsel for the Closing Date, the Representative shall have received, in form Issuer and substance reasonably satisfactory to them, the favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the Company and certain of the Cayman Subsidiary Guarantors, dated the Closing Date, substantially to the effect set forth in Exhibit B.that:
(ei) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, 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. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ LLP may rely as to all matters governed by Oklahoma law upon the opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., referred to above.
(f) The Purchasers shall have received a certificate, dated the Closing Date, each of the Chief Financial OfficerIssuer and MMI has been duly incorporated, Treasurer or any Vice President is validly existing as a corporation in good standing under the laws of the Company, acting in such capacity (Cayman Islands and not individually), shall state that has the representations corporate power and warranties of the Company in this Agreement are true authority to own its property and correct to conduct its business as if made on and as of such date, that the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such date (after giving effect to the offering and sale of the Offered Securities), and that, subsequent to the date as of which information is given described in the Offering Documents (as amended or supplemented)Document, as and each of the date of such certificate, there has not been any change in such information that would have a Material Adverse Effect.
(g) The Purchasers shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(h) The Purchasers shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Company, certified as of a recent date by the Secretary of State of the State of Oklahoma, (ii) a certificate of good standing for the Company, dated as of a recent date, from such Secretary of State Issuer and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which the Company MMI 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;
(ii) each of the Cayman Subsidiary Guarantors has been duly incorporated, its validly existing as a corporation in good standing under the laws of such state.Cayman Islands and has the corporate power and authority to own its property and to conduct its business as described in the offering document;
(iiii) The Purchasers shall have received (i) a copy the authorized capital stock of the certificate Issuer and each Cayman Subsidiary Guarantor conforms as to legal matters to the description thereof contained in the Offering Document;
(iv) all the issued shares of capital stock of the Issuer have been duly authorized and validly issued and, assuming issuance against payment therefor, are fully paid and nonassessable and registered in the name of MMI; the shares of Common Stock initially issuable upon conversion of the Warrants have been duly authorized and reserved for issuance upon such conversion; and all the issued shares of capital stock of [insert names of the Cayman Subsidiaries] have been duly authorized and validly issued and, assuming issuance against payment therefore, are fully paid and nonassessable and registered in the name of the Issuer;
(v) the Warrants are convertible into Common Stock of the Issuer in accordance with the terms of the Warrant Agreement and the holders of capital stock of the Issuer have no preemptive rights or articles of incorporation (rights to have "anti-dilution" or similar organizational document)adjustments made in connection with the issuance of the Warrants or the Underlying Shares;
(vi) the Offered Securities have been duly authorized, including all amendments theretoexecuted, of issued and delivered and conform to the description thereof contained in the Offering Document;
(vii) each of the Subsidiary GuarantorsIndenture, certified as of a recent date the Warrant Agreement, the Escrow Agreement, the Collateral Agency Agreement, this Agreement and the Registration Rights Agreement has been duly authorized, executed and delivered by the Secretary of State Issuer;
(viii) there is no tax, levy, impost, deduction, charge or withholding imposed by the Cayman Islands or any political subdivision or taxing authority thereof or therein either (1) on or by virtue of the state in which such subsidiary is organizedexecution, (ii) a certificate or delivery or performance or continued validity of good standing for each any of the Subsidiary GuarantorsIndenture, certified as of a recent date the Warrant Agreement, the Escrow Agreement, the Collateral Agency Agreement or any Mortgage or any other document referred to therein or to be furnished thereunder (including the Offered Securities) or (2) on any payment to be made by the Secretary of State Issuer or any Subsidiary Guarantor pursuant to any of the state in which such subsidiary is organized Indenture, the Warrant Agreement, the Escrow Agreement, the Collateral Agency Agreement, the Offered Securities or any Mortgage. All filing, registration and (iii) a certificate, dated as of a recent date, of the Secretary of State of each state in which each such subsidiary is qualified to do business as a foreign corporation (or similar entity) recording fees required under the laws of each such state.the Cayman Islands in connection with the Security Document or the Warrant Agreement or other fees necessary to assure the validity, effectiveness and priority of any liens, charges and encumbrances created thereby have been paid;
(jix) The Purchasers shall have received a counterpart no consent, approval, authorization or order of each Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer or filing with, any governmental authority or regulatory body or court of the Company Cayman Islands is required for the execution, delivery and each Subsidiary Guarantor. The Company will furnish performance of the Purchasers with Indenture, the Warrant Agreement, the Collateral Agency Agreement and the Escrow Agreement by the respective parties thereto, and no such conformed copies consent, approval or authorization or order of such opinionsor filing is required for the exercise by the Trustee, certificatesthe Warrant Agreement, letters and documents the Collateral Agent or the Escrow Agent, as the Purchasers reasonably request. The Representative case may in its sole discretion waive on behalf be, of the Purchasers compliance with rights and remedies granted to it under any conditions to the obligations of the Purchasers hereunder.Security Documents or the Warrant Agreement, except for a filing and registration of the Cayman Islands Mortgages in [insert appropriate location], or for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Securities
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