Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other obligations hereunder and to the following further conditions: (a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission. (b) At the applicable Closing Date, you shall have received signed copies of: 1. The opinion, dated as of the applicable Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for the Company and the Western Gas Parties that: (i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package. (ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package. (iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect. (iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package. (v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership. (vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties. (vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act. (viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. (ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package. (x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package. (xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package. (xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act). (xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable. (xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission. (xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission. (xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof. (xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion. (xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion. (xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. (xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects. (xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects. (xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. (xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that: (A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and (B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective effective dates and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP Ac
Appears in 2 contracts
Sources: Underwriting Agreement (Anadarko Petroleum Corp), Underwriting Agreement (Western Gas Equity Partners, LP)
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), respects of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bSection 3(b) and 6(bSection 4(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, corporate action by the Company and the Western Gas PartiesCompany. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas PartiesCompany.
(viiiii) The Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and delivered in accordance with the terms of the applicable Terms Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(v) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. .
(vi) The Indenture is duly has been qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvivii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, Agreement by the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated Company and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securitiesthereunder, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 Section 3 hereof.
(xviiviii) The execution and delivery of the applicable Terms Agreement and by the Units DocumentsCompany do not, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and applicable Terms Agreement will not not, result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinionbylaws.
(xviiiix) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do Company is not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxx) The statements in the Prospectus under the captions “Description of the Units,Notes” and “Description of the Purchase Contracts” and “Description of the Amortizing NotesDebt Securities,” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, Securities and the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiixi) The statements included in the Disclosure Package and the Prospectus under the heading “Material Materal United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax ConsequencesConsiderations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iviii), (v), (vi), (vii), (viii), (xvii), (xviii), (xixx) and (xxxi) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Associate General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(ii) Each Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(iii) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(iv) The execution and delivery of the applicable Terms Agreement, the Indenture, the issuance of the Securities, the incurrence of the obligations set forth herein and therein and the consummation of the transactions herein and therein contemplated do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, in all cases except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(v) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in a Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(vi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement by the Company and the performance by the Company of its obligations thereunder, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (iii) such filings under the Act or the Exchange Act as may be required under Section 3 hereof.
(vii) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that constitutes the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware governing corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foregoing opinion, such counsel may have received and may rely upon such certificates and other documents and information as he or she may reasonably request to pass upon such matters.
3. The opinion or opinions, dated as of the applicable Closing Date, of counsel for the Underwriters specified in the Prospectus and the Disclosure Package, with respect to the validity of the Securities, the Registration Statement, the Prospectus, the Disclosure Package and other related matters as you reasonably may request. In rendering the foregoing opinion, such counsel may rely, to the extent recited therein, as to matters involving the laws of any jurisdiction other than the States of Delaware and New York, upon opinions of local counsel. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Delaware LP AcCompany and other sources believed by them to be responsible.
(c) Subsequent to the execution and delivery of the Terms Agreement, there shall not have occurred (i) any Material Adverse Change which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Securities; (ii) any downgrading in th
Appears in 1 contract
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bSection 3(b) and 6(bSection 4(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, corporate action by the Company and the Western Gas PartiesCompany. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas PartiesCompany.
(viiiii) The Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and delivered in accordance with the terms of the applicable Terms Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(v) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. .
(vi) The Indenture is has been duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvivii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 Section 3 hereof.
(xviiviii) The execution and delivery of the applicable Terms Agreement and the Units DocumentsAgreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents Indenture in relation to the Securities do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviiiix) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner isCompany is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each thereof as described in the Prospectus, Prospectus will not be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxx) The statements in the Prospectus under the captions “Description of the Units,Notes” and “Description of the Purchase Contracts” and “Description of the Amortizing NotesDebt Securities,” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, Securities and the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiixi) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax ConsequencesConsiderations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iviii), (v), (vi), (vii), (viii), (xvii), (xviii), (xixx) and (xxxi) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Associate General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(ii) Each Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(iii) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns all of the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(iv) The execution and delivery of the applicable Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Indenture do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, in all cases except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(v) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(vi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement by the Company, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Indenture, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (iii) such filings under the Act or the Exchange Act as may be required under Section 3 hereof.
(vii) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that constitutes the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware LP Acgoverning corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foreg
Appears in 1 contract
Conditions of Your Obligations. The Your obligations hereunder, as ------------------------------ to the Common Stock to be delivered at the Closing Date, are subject, in your discretion, to the condition that all representations and warranties and other statements of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to Bank and the accuracy Company herein are, at and as of the commencement of the Subscription and Community Offering and at and as of the Closing Date, true and correct in all material respects, unless otherwise qualified by materiality (in which case such representations the condition that the Bank and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties shall have performed in all material respects of all of their respective covenants and other its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus Registration Statement shall have been filed with declared effective by the Commission in accordance not later than 5:30 p.m. on the August 12, 1997, or with your consent at a later time and date; and at the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No Closing Date no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement consummation of the Conversion shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission or any state authority, and no order or other action suspending the effectiveness of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefor initiated or threatened by the Commission, any state authority, the OTS or the FDIC.
(b) At the applicable Closing Date, Date you shall have received signed copies ofreceived:
(1. ) The favorable opinion, dated as of the applicable Closing DateDate addressed to the Agent and for its and its counsel's benefit, of ▇▇▇▇▇▇ Breyer & ▇▇▇▇▇▇ L.L.P.Aguggia, special counsel for the Company and the Western Gas Parties Bank in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State Commonwealth of Delaware Pennsylvania. The Bank validly exists as a federally chartered savings bank under the laws of the United States of America and upon the Conversion will become a duly organized and validly existing federally chartered savings bank in the capital stock form of organization.
(ii) The Company and the Bank each has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction where it owns or leases any material properties or conducts any material business.
(iii) The deposit accounts of the Bank are insured by the SAIF up to applicable limits in accordance with applicable regulations; and, to the best of such counsel's knowledge, no proceeding for the termination or revocation of such insurance is pending or threatened. The Bank is a member of the Federal Home Loan Bank of Pittsburgh.
(iv) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Registration Statement and the Prospectus under the Delaware General Corporation Law caption "Capitalization" and no shares of Common Stock have been issued prior to the Closing Date; the shares of Common Stock to be sold in the Subscription Offering and Community Offering have been duly and validly authorized for issuance and, when issued and delivered by the Company against payment therefor as set forth in the Plan and stated on the cover page of the Prospectus, will be duly and validly issued and fully paid and nonassessable; and the issuance of the shares of Common Stock is not subject to statutory preemptive rights.
(v) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned of record and, to such counsel's knowledge, beneficially, by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vi) The Company's acquisition of the Bank has been approved by the OTS and, to the best of such counsel's knowledge, no action has been taken or is pending or threatened to revoke such approval.
(vii) The Conversion Application, as amended or supplemented, if amended or supplemented, as filed with the OTS, complied as to form in all material respects with the requirements of the HOLA and the Conversion Regulations. The OTS has authorized the Conversion, subject to the satisfaction of the conditions set forth in its
(viii) The OTS' approval of the Plan remains in full force and effect; the Bank has duly adopted a federal stock charter and by-laws effective upon consummation of the Conversion; to the best of such counsel's knowledge, the Company and the Bank have conducted the Conversion in all material respects in accordance with applicable requirements of the Conversion Regulations, federal law, all other applicable regulations, decisions and orders thereunder and the Plan, including all material applicable terms, conditions, requirements and conditions precedent to the Conversion imposed upon the Company and the Bank by the Commission and the OTS; no order has been issued by the Commission or the OTS to suspend the Subscription and Community Offering and no action for such purpose has been instituted or, to the best of such counsel's knowledge, threatened by the Commission or the OTS; and, to the best of such counsel's knowledge, no person has sought to obtain review of the final action of the OTS in approving the Conversion Application or the Plan.
(ix) This Agreement has been duly authorized, executed and delivered by the Company and the Bank.
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending effectiveness has been issued under the 1933 Act and, to the best of such counsel's knowledge, no proceedings therefor have been initiated or threatened by the Commission or any state authority.
(xi) Subject to satisfaction of conditions of the OTS in connection with its approval of the Conversion Application and Holding Company Application, no further approval, authorization, consent or other order of any federal or state board or body is required in connection with the execution and delivery of this Agreement, the issuance of the shares of Common Stock and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which counsel need render no opinion.
(xii) At the time the Registration Statement became effective, the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, stock valuation information and other financial and statistical data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and (ii) the Prospectus (other than the financial statements, stock valuation information and other financial and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Conversion Regulations and federal law.
(xiii) The information in the Registration Statement and Prospectus under the captions "Risk Factors - Anti-Takeover Provisions," "Taxation," "Regulation," "Restrictions on Acquisition of the Holding Company," "The Conversion" and "Description of Capital Stock of the Holding Company" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects.
(xiv) The terms and provisions of the Common Stock of the Company conform in all material respects to the description thereof contained in the Prospectus, and the form of certificate used to evidence the shares of Common Stock is in due and proper form.
(xv) To the best of such counsel's knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement and Prospectus or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto.
(xvi) To such counsel's Actual Knowledge, the Company, the Bank and the Subsidiary have obtained all material federal licenses, permits and other governmental authorizations currently required under federal banking laws for the conduct of their respective businesses as described in the Prospectus or filed as an exhibit to the Registration Statement, and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the Bank and the Subsidiary are in all material respects complying therewith.
(xvii) The Plan has been duly authorized by the Board of Directors of the Company and the Board of Directors of the Bank and, effective upon consummation of the Conversion, the Bank will be authorized to issue capital stock.
(xviii) To such counsel's Actual Knowledge the Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or
(xix) The Bank is not in violation of its federal mutual charter or bylaws (and the Bank will not be in violation of its charter in stock form upon consummation of the Conversion) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument described in the Prospectus or filed as an exhibit to the Registration Statement; the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transaction contemplated herein, will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Bank pursuant to any material contract indenture, mortgage, loan agreement, note, lease or other instrument, described in the Prospectus or filed as an exhibit to the Registration Statement, nor will such action result in any violation of the provisions of the charter or bylaws of the Bank.
(xx) To the best of such counsels knowledge, the Company and the Bank are not in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting their business.
(xxi) Neither the Company nor the Bank is required to be registered as an investment company under the Investment Company Act of 1940.
(xxii) Based on the certificate of the inspector of election, the Plan has been duly adopted by the required vote of the members of the Bank. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction or the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing (providing that such counsel states that the Agent and its certificate counsel are justified in relying upon such specified opinion or opinions), and (B) as to matters of incorporation fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and bylaws the Bank and public officials.
(2) The favorable opinion, dated as of the Closing Date and addressed to ▇▇▇▇ ▇▇▇▇ and for its benefit of __________, the Bank's local counsel, in form and substance to the effect that
(i) The Bank has the corporate power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement and Prospectus; and the Bank is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction where it owns or leases any material properties or conducts any material business.
(ii) The Subsidiary is incorporated and validly existing Pennsylvania corporation in good standing with full corporate authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws activities of the State Subsidiary are permitted by the rules, regulations, resolutions and practices of Delaware the OTS, the FDIC and has any other federal or state authorities having jurisdiction over such matters;; the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company corporation to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensingis required, except to the extent that unless the failure to be so qualified in one or licensed or be in good standing more such jurisdictions would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under material adverse effect on the laws condition, financial or otherwise, or the business of the jurisdiction of its organizationCompany, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus Bank and the Disclosure Package.
(v) Each Western Gas Party has Subsidiary considered as one enterprise; and all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery outstanding stock of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company Subsidiary has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as nonassessable, and such nonassessability may be affected stock is owned directly by Sections 17-303the Bank and is free and clear of any liens, 17-607 and 17-804 of the Delaware LP Act)encumbrances, claims or other restrictions.
(xiiiiii) There are no legal or governmental proceedings pending or, to the best of such counsel's knowledge, threatened against the Company, the Bank or the Subsidiary which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal and governmental proceedings to which the Company, the Bank or the Subsidiary is the subject which are not disclosed in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(iv) The Maximum Number Company, the Bank and the Subsidiary have obtained all material state and local licenses, permits and other governmental authorizations currently required for the conduct of Issuable APC Shares their respective businesses as described in the Registration Statement and Prospectus, and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the Bank and the Subsidiary are in all material respects complying therewith.
(v) The Subsidiary is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Subsidiary is a party as a borrower, a lessee or a guarantor, or by which the Subsidiary or any of its property may be bound as a borrower, a lessee or a guarantor; the execution and delivery of this Agreement, the incurrence of the obligations herein and therein set forth and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of APC and reserved for issuance any material lien, charge or encumbrance upon settlement any property or assets of the Purchase Contracts andSubsidiary pursuant to any material contract, assuming issuance indenture, mortgage, loan agreement, note, lease or other instrument to which the Subsidiary is a party as a borrower, a lessee or a guarantor, or by which it may be bound as a borrower, a lessee or a guarantor, or to which any of the APC Common Stock upon settlement property or assets of the Purchase Contracts on the date hereof Subsidiary is subject, nor will such action result in accordance with the terms any violation of the Purchase Contracts and provisions of the Purchase Contract Agreement, would be validly issued, fully paid and non-assessablearticles of incorporation or bylaws of the Subsidiary.
(xivvi) The Registration Statement has become effective under To the Act and, to best of such counsel’s 's knowledge, no stop order suspending the effectiveness Company, the Bank and the Subsidiary have good and marketable title to all properties and assets which are material to the business of the Company, the Bank and the Subsidiary, respectively, and to those properties and assets described in the Registration Statement has been issued under as owned by them, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Act, and no proceeding pursuant Registration Statement (including the Liquidation Account) or are not material in relation to Section 8A the business of the Act against Company, the Company or in connection with Bank and the offering is pending or, to the knowledge of such counsel, threatened by the CommissionSubsidiary considered as one enterprise.
(xv3) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness letter of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws special counsel for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation Bank addressed to the SecuritiesAgent, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective effective dates and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of dated the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as form and substance to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in effect that: During the preparation of the Registration StatementConversion Application, the Partnership Registration Statement, Statement and the Prospectus, the Partnership Prospectus such counsel participated in conferences with management of and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP Acpublic accountants fo
Appears in 1 contract
Sources: Agency Agreement (SHS Bancorp Inc)
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), respects of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing DateTime, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, At the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bapplicable Closing Time (i) and 6(b) hereof. No no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and (ii) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since the execution of such Terms Agreement.
(b) At the applicable Closing Date, Time you shall have received signed copies of:
(1. ) The opinion, dated as of the applicable Closing DateTime, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for the Company specified in the Prospectus, in form and substance satisfactory to you, to the Western Gas Parties effect that:
(i) The Company is duly incorporated and validly existing as a corporation in good standing under the laws of the State of Delaware and Delaware.
(ii) The Company has the corporate power and corporate authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure PackageProspectus.
(iii) The Company This Agreement and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisionsif any, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming .
(iv) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authentication of the Amortizing Notes authorization, execution and delivery by the Trustee, upon payment is a valid and delivery legally binding agreement, enforceable against the Company in accordance with its terms, except as (i) may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and availability of equitable remedies may be limited by equitable principles of general applicability.
(v) The specimen of the Securities covered by the applicable Terms Agreement and examined by such counsel is in the form contemplated by the Indenture; the Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and authenticated in accordance with the terms of the Indenture and delivered against payment of the consideration therefore in accordance with this Agreement, will be valid and binding obligations of the Company entitled to the benefits of the Indenture.
(vi) In the case of Securities convertible into Common Stock, the shares of Common Stock issuable upon the conversion of the Securities have been reserved for issuance and, when issued upon conversion of such Securities in accordance with the terms of the applicable Terms AgreementIndenture, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been be duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable, and the issuance of such Conversion Shares will not, to the best of such counsel's knowledge, be subject to any preemptive or similar rights.
(xivvii) The Indenture has been duly qualified under the 1939 Act.
(viii) The Registration Statement has become is effective under the 1933 Act and, to such counsel’s the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the 1933 Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, proceedings therefor initiated or threatened by the Commission.
(xvix) The Partnership Registration Statement has become effective under No regulatory consent, authorization, approval or filing is required by the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness laws of the Partnership Registration Statement has been issued under United States or of any state thereof for the Actissuance, sale and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained delivery by the Company or to the Western Gas Parties under any laws for the due execution and delivery Underwriters of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance Securities covered by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, applicable Terms Agreement except (i) such Filings as have been obtained or mademade under the 1933 Act, (ii) Filings the 1934 Act, the 1939 Act and other applicable legislation specified in such opinion and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereofyou.
(xviix) The execution and delivery of the this Agreement, any applicable Terms Agreement and the Units DocumentsIndenture, the issuance of Securities covered by the Securitiesapplicable Terms Agreement, the incurrence of the obligations set forth herein and therein, and the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not conflict with or constitute or result in a violation of breach of, or default under, the Company’s certificate of incorporation or bylaws or by-laws, each as in effect at the laws applicable Closing Time, of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinionCompany.
(xviiixi) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each Such counsel is of the opinion that the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus Statement and the Partnership Prospectus and any supplements or amendments thereto (except the for financial statements, statements or other financial schedules and other financial, accounting, reserve and production or statistical data contained therein as to which such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the 1933 Act Regulations; and (B) nothing which has come to the attention of such counsel has caused them to believe that the Registration Statement at the time of the applicable Terms Agreement (except for financial statements or incorporated by reference other financial or statistical data contained therein as to which such counsel need not express any belief and except for that part of the Registration Statement that contains constitutes the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(Bhereinafter referred to) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective effective dates and as of the date of the Terms Agreement, contained an any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) misleading or that the Disclosure PackageProspectus, as of the Applicable Timeamended or supplemented, contained if applicable, contains any untrue statement of a material fact or omitted omits to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs subparagraph (A) and (Bxi) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Statement and Prospectus and the Disclosure Package, and any amendments or supplements thereto, thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) abovespecified. In rendering such opinionthe foregoing opinion or opinions, such special counsel may shall opine only as to the Federal laws of the United States, the laws of the States State of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP AcDelaware. Such counsel may also state that
Appears in 1 contract
Sources: Underwriting Agreement (Anadarko Petroleum Capital Trust Iii)
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bSection 3(b) and 6(bSection 4(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, corporate action by the Company and the Western Gas PartiesCompany. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas PartiesCompany.
(viiiii) The Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and delivered in accordance with the terms of the applicable Terms Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(v) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. .
(vi) The Indenture is has been duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvivii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, Agreement by the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated Company and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securitiesthereunder, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 Section 3 hereof.
(xviiviii) The execution and delivery of the applicable Terms Agreement and by the Units DocumentsCompany do not, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and applicable Terms Agreement will not not, result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinionbylaws.
(xviiiix) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner isCompany is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each thereof as described in the Prospectus, Prospectus will not be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxx) The statements in the Prospectus under the captions “Description of the Units,Notes” and “Description of the Purchase Contracts” and “Description of the Amortizing NotesDebt Securities,” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, Securities and the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiixi) The statements included in the Disclosure Package and the Prospectus under the heading “Material Materal United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax ConsequencesConsiderations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iviii), (v), (vi), (vii), (viii), (xvii), (xviii), (xixx) and (xxxi) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Associate General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(ii) Each Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(iii) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(iv) The execution and delivery of the applicable Terms Agreement, the Indenture, the issuance of the Securities, the incurrence of the obligations set forth herein and therein and the consummation of the transactions herein and therein contemplated do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, in all cases except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(v) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in a Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(vi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement by the Company and the performance by the Company of its obligations thereunder, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (iii) such filings under the Act or the Exchange Act as may be required under Section 3 hereof.
(vii) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that constitutes the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware governing corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foregoing opinion, such counsel may have received and may rely upon such certificates and other documents and information as he or she may reasonably request to pass upon such matters.
3. The opinion or opinions, dated as of the applicable Closing Date, of counsel for the Underwriters specified in the Prospectus and the Disclosure Package, with respect to the validity of the Securities, the Registration Statement, the Prospectus, the Disclosure Package and other related matters as you reasonably may request. In rendering the foregoing opinion, such counsel may rely, to the extent recited therein, as to matters involving the laws of any jurisdiction other than the States of Delaware and New York, upon opinions of local counsel. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Delaware LP AcCompany and other sources believed by them to be responsible.
(c) Subs
Appears in 1 contract
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), respects of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing DateTime, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, At the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bapplicable Closing Time (i) and 6(b) hereof. No no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and (ii) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since the execution of such Terms Agreement.
(b) At the applicable Closing Date, Time you shall have received signed copies of:
(1. ) The opinion, dated as of the applicable Closing DateTime, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for the Company specified in the Prospectus, in form and substance satisfactory to you, to the Western Gas Parties effect that:
(i) The Company is duly incorporated and validly existing as a corporation in good standing under the laws of the State of Delaware and Delaware.
(ii) The Company has the corporate power and corporate authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure PackageProspectus.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporationThis Agreement, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company Agreement and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Delayed Delivery Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreementif any, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming .
(iv) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authentication of the Amortizing Notes authorization, execution and delivery by the Trustee, upon payment is a valid and delivery legally binding agreement, enforceable against the Company in accordance with its terms, except as (i) may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and availability of equitable remedies may be limited by equitable principles of general applicability.
(v) The specimen of the Securities covered by the applicable Terms Agreement and examined by them is in the form contemplated by the Indenture; the Securities covered by the applicable Terms Agreement have been duly authorized and executed by the Company, and, when executed and authenticated in accordance with the terms of the Indenture and delivered against payment pursuant to this Agreement, as supplemented by the applicable Terms Agreement, the Amortizing Notes or any applicable Delayed Delivery Contracts, will constitute be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms terms, except as (i) may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and entitled to the benefits (ii) rights of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus acceleration and the Disclosure Packageavailability of equitable remedies may be limited by equitable principles of general applicability.
(xivi) The In the case of Securities convertible into Common Stock, the shares of Common Stock issuable upon the conversion of the Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact reserved for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership issuance and, assuming delivery when issued upon conversion of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof such Securities in accordance with the terms of the Purchase Contracts and the Purchase Contract AgreementIndenture, would will be duly authorized, validly issued, fully paid and non-assessable (except as such nonassessability and will conform to the description thereof in the Prospectus. Stockholders of the Company have no preemptive rights with respect to shares of Common Stock into which the Securities may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act)converted.
(xiiivii) The Maximum Number of Issuable APC Shares have Indenture has been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of qualified under the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable1939 Act.
(xivviii) The Registration Statement has become is effective under the 1933 Act and, to such counsel’s the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the 1933 Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, proceedings therefor initiated or threatened by the Commission.
(xvix) The Partnership Registration Statement has become effective under No regulatory consent, authorization, approval or filing is required by the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness laws of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A United States or of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws state thereof for the due execution issuance, sale and delivery of the Securities covered by the applicable Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance Agreement by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, Underwriters except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings made under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents1933 Act, the issuance of the Securities1934 Act, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company 1939 Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which applicable legislation specified in such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective effective dates and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP Acas
Appears in 1 contract
Conditions of Your Obligations. The Your obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement hereunder are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Datecontained, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other its obligations hereunder hereunder, and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No At Closing Time no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The price of the Securities and any other information previously omitted from the effective Registration Statement pursuant to Rule 415 of the 1933 Act Regulations shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to you of such timely filing, or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of the 1933 Act Regulations.
(b) At the applicable Closing Date, Time you shall have received signed copies of:
1. The the favorable opinion, dated as of the applicable Closing DateTime, of Sullivan & Worcester LLP, counsel for the Company, in form and substa▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.sfactory to your counsel, special counsel for to the Company and the Western Gas Parties effect that:
(i) The Company is a Maryland real estate investment trust duly organized, validly existing as a corporation and in good standing under the laws of the State of Delaware Maryland; each of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X under the 1933 Act) has been duly organized, is validly existing as a corporation or trust in good standing under the laws of its jurisdiction of incorporation or organization; each of the Company and its subsidiaries has the trust or corporate (as applicable) power and authority to carry on its business as described in the Registration Statement and in the Prospectus and to own, lease and operate its properties; each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation or trust, as the case may be, authorized to do business in each jurisdiction in which its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) All of the issued and outstanding shares of beneficial interest of, or other ownership interests in, each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company free and clear of any security interest or other adverse interest (within the meaning of Article 8 of the Massachusetts Uniform Commercial Code).
(iii) The Registration Statement has become effective under the Delaware General Corporation Law 1933 Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424 under the 1933 Act has been made in accordance with said Rule 424.
(iv) The Company has the requisite trust power and authority to enter into and perform this Agreement and to issue and deliver the Securities.
(v) To such counsel's knowledge, except as disclosed in the Registration Statement or in the Prospectus, there is not now pending or threatened, any litigation, action, suit or proceeding to which the Company or any of its subsidiaries or the Advisor is or will be a party before or by any court or governmental agency or body, which (A) might result in any material adverse change in the condition, financial or otherwise, or in the business, operations, earnings, prospects or properties of the Company and its certificate subsidiaries, taken as a whole, or (B) might materially and adversely affect the property or assets of incorporation the Company and bylaws its subsidiaries, taken as a whole, or (C) concerns the Company or any of its subsidiaries or the Advisor and is required to be disclosed in the Prospectus, or (D) could adversely affect the consummation of this Agreement and the issuance of the Securities; to such counsel's knowledge, no contract or other document is required to be described in the Registration Statement or in the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required.
(vi) Except as otherwise disclosed in the Prospectus, to such counsel's knowledge, neither the Company, any of its subsidiaries nor the Advisor is in violation of its respective charter or by-laws or other organizational documents or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other material agreement, indenture or instrument to which the Company, any of its subsidiaries or the Advisor is a party or by which any of their respective properties or assets may be bound or affected, except for any such violation that would not have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole.
(vii) To such counsel's knowledge, each of the Company, its subsidiaries and the Advisor has such permits, licenses, franchises and authorizations of governmental or regulatory authorities (together, "permits"), including, without limitation, under any applicable Environmental Law, as are necessary to own, lease and operate its properties and conduct its business as described to engage in the Prospectus business currently conducted by it, except such licenses and permits as to which the Disclosure Packagefailure to own or possess will not in the aggregate have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole.
(iiviii) The Partnership execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not conflict with or constitute a breach or violation of any of the terms or provisions of, or constitute a default under, (A) the Declaration of Trust or the By-laws of the Company or the charter or by-laws or other organizational documents of the Advisor or any Significant Subsidiary of the Company, or (B) except as disclosed in the Prospectus, any material agreement, indenture or other instrument to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets is bound, or (C) any laws, administrative regulations or rulings or decrees known to such counsel to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets may be subject.
(ix) No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any federal, Massachusetts or Maryland court or public, governmental or regulatory agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or the Advisor or any of their respective material properties or assets is required for the Company's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the issuance, sale and delivery of the Securities pursuant to this Agreement, except such as have been obtained and such as may be required under foreign and state securities or "Blue Sky" laws.
(x) The Advisory Agreement has been duly authorized, executed and delivered by the parties thereto and constitutes the valid agreement of the parties thereto, enforceable in accordance with its terms, except (a) as limited by the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors, (b) as limited by the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and
(c) insofar as the enforceability of the indemnity and contribution provisions contained in such agreement may be limited by federal or state securities laws and the public policy underlying such laws.
(xi) The Advisor (A) is a corporation duly organized, validly existing as a partnership and in good standing under the laws of the State of Delaware Delaware, and (B) has the limited partnership requisite corporate power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Packageto own and operate its material properties.
(vxii) The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856-860 of the Code for each of the fiscal years ended December 31, 1987 through December 31, 1997, and the Company's current anticipated investments and its current plan of operation will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; actual qualification of the Company as a real estate investment trust, however, will depend upon the Company's continued ability to meet, and its meeting, through actual annual operating results and distributions, the various qualification tests imposed under the Code.
(xiii) The Registration Statement and the Prospectus and any supplements or amendments thereto (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein and the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)), as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the 1933 Act.
(xiv) Each Western Gas Party has document incorporated by reference in the Registration Statement and in the Prospectus (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein and the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)), as to which such counsel need not express any opinion) complied as to form when filed with the Commission in all requisite entity power to ownmaterial respects with the requirements of the 1934 Act.
(xv) The statements (a) in the Prospectus under the captions "Description of Shares", lease "Redemption; Business Combinations and operate its respective properties Control Share Acquisitions" and conduct its business"Limitation of Liability; Shareholder Liability", (b) in Item 1 of the Company's Annual Report on Form 10-K under the caption "Regulation and Reimbursement", (c) in Part B ("Authorization of Additional Common Shares of Beneficial Interest") of Item 5 of the Company's Current Report on Form 8-K dated February 17, 1997 and (d) Item 5 of the Company's Current Report on Form 8-K dated February 13, 1997 (excluding the statements under the caption "Legal Proceedings"), in each case in all material respects, insofar as described in they purport to summarize matters arising under Massachusetts or Maryland law or the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner federal law of the PartnershipUnited States, or provisions of documents to which the Company is a party specifically referred to therein, are accurate summaries of such legal matters or provisions.
(vixvi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract This Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xiA) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication All of the Securities by the Purchase Contract Agent and (b) the due execution and delivery outstanding shares of beneficial interest of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be are validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 otherwise described in the Registration Statement) and 17-804 of (B) the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares Securities have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof when issued and delivered to you against payment therefor in accordance with the terms of the Purchase Contracts and the Purchase Contract this Agreement, would will be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Actnonassessable, and no proceeding pursuant to Section 8A will be free of the Act against the Company or in connection with the offering is pending any preemptive or, to their knowledge, similar rights that entitle any person (other than you, your successors and assigns) to acquire any Securities upon the knowledge of such counsel, threatened issuance thereof by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery Company is not required to register as an "investment company" within the meaning of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion1940 Act.
(xix) Neither To the Companyextent required to be described therein, the Partnership nor the General Partner is, and immediately after giving effect Securities conform in all material respects to the offering and sale of descriptions in the Securities Registration Statement and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The Although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review and discussion of the contents thereof (including review and discussion of the contents of all documents incorporated by reference in the Registration Statement and the Prospectus), and nothing has come to the attention of such counsel that has caused them to believe that the Registration Statement (including the documents incorporated by reference therein, ) at the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of time the Registration Statement that contains the Form T-1 as to which such counsel need express no view)became effective, at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration StatementProspectus, as of their respective effective dates its date and as of Closing Time, as the date of the Terms Agreementcase may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) misleading or that any amendment or supplement to the Disclosure PackageProspectus, as of its respective date, and as of Closing Time, as the Applicable Timecase may be, contained any untrue statement of a material fact or omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except it being understood that in the case of each of clauses (i)-(iii) above, such counsel need not express any no view as with respect to (a) the financial statements, financial statements and the notes thereto and the schedules and other financial, accounting, reserve financial and production statistical data contained included or incorporated by reference therein and except for that part of in the Registration Statement or in the Prospectus or (b) the matters to be addressed in the opinion of Sherin & Lodgen LLP, special counsel to the Company, described below.) In rendering their opinion as aforesaid, Sullivan & Worcester LLP may rely upon an opinion, dated as ▇▇ ▇▇▇sing Time, of Piper & Marbury L.L.P. as to matters governed by Maryland law, provided that contains the Form T-1such reliance is expressly authorized by such opinion and a copy of such opinion is delivered to you and is, in form and substance, satisfactory to you and your counsel. With respect to subparagraphs (A) and (B) aboveIn addition, in rendering such opinion, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and is limited to the Delaware LP AcGeneral Corporation Law and that their opinion with respect to the qualification of the Company and its subsidiaries to do business in jurisdictions other than their respective jurisdictions of organization is based solely upon certificates to such effect issued by an appropriate official of the applicable jurisdictions. The opinion of Piper & Marbury L.L.P. described in the paragraph above shall be rendered to you at the request of the Company and shall so state therein. In addition, you shall have received at Closing Time an opinion (satisfactory to you and your counsel) of Sherin & Lodgen LLP, special counsel for the Company, dated as of Closing Time, to the effect that the statements describing the proceedings (the "Excluded Proceedings") described in Item 5 of the Company's Current Report on Form 8-K dated February 13, 1997 under the caption "Legal Proceedings", insofar as they purport to summarize legal proceedings constitute a fair summary of such legal proceedings.
Appears in 1 contract
Sources: Purchase Agreement (Health & Retirement Properties Trust)
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bSection 3(a) and 6(bSection 4(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, corporate action by the Company and the Western Gas PartiesCompany. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas PartiesCompany.
(viiiii) The Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and delivered in accordance with the terms of the applicable Terms Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(v) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. .
(vi) The Indenture is has been duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvivii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 Section 3 hereof.
(xviiviii) The execution and delivery of the applicable Terms Agreement and the Units DocumentsAgreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents Indenture in relation to the Securities do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviiiix) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner isCompany is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each thereof as described in the Prospectus, Prospectus will not be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxx) The statements in the Prospectus under the captions “Description of the Units,notes” and “Description of the Purchase Contracts” and “Description of the Amortizing NotesDebt Securities,” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, Securities and the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiixi) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material Certain U.S. Federal Income Tax Consequencesfederal income tax considerations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iviii), (v), (vi), (vii), (viii), (xvii), (xviii), (xixx) and (xxxi) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Deputy General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(ii) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(iii) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns all of the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(iv) The execution and delivery of the applicable Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Indenture do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, in all cases except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(v) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(vi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement by the Company, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Indenture, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (iii) such filings under the Act or the Exchange Act as may be required under Section 3 hereof.
(vii) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that constitutes the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware LP Acgoverning corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foregoing
Appears in 1 contract
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), respects of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bSection 3(b) and 6(bSection 4(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of Akin Gump S▇▇▇▇▇▇ & ▇▇H▇▇▇▇ L.L.P.& F▇▇▇ LLP, special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and Delaware, has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, corporate action by the Company and the Western Gas PartiesCompany. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas PartiesCompany.
(viiiii) The Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and delivered in accordance with the terms of the applicable Terms Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(v) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. .
(vi) The Indenture is duly has been qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvivii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, Agreement by the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated Company and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securitiesthereunder, except (i) routine Filings necessary in connection with the conduct of the Company’s business, including routine Filings required to be made under the Exchange Act, (ii) such other Filings as have been obtained or made, (iiiii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, (iv) Filings required to maintain corporate and similar standing and existence, and (iiiv) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 Section 3 hereof.
(xviiviii) The execution and delivery of the applicable Terms Agreement and by the Units DocumentsCompany do not, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and applicable Terms Agreement will not not, result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinionbylaws.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiiix) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax ConsequencesConsiderations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xixiii) and (xxv) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Associate General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(ii) Each Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(iii) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(iv) The execution and delivery of the applicable Terms Agreement, the Indenture, the issuance of the Securities, the incurrence of the obligations set forth herein and therein and the consummation of the transactions herein and therein contemplated do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; or (b) any provision of any indenture, mortgage or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(v) Neither the Company nor any of its subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in a Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would have a Material Adverse Effect.
(vi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement by the Company and the performance by the Company of its obligations thereunder, except (i) routine Filings necessary in connection with the conduct of the Company’s business, including routine Filings required to be made under the Exchange Act, (ii) such other Filings as have been obtained or made, (iii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iv) Filings required to maintain corporate and similar standing and existence.
(vii) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus and the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that constitutes the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware governing corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foregoing opinion, such counsel may have received and may rely upon such certificates and other documents and information as he or she may reasonably request to pass upon such matters.
3. The opinion or opinions, dated as of the applicable Closing Date, of counsel for the Underwriters specified in the Prospectus and the Disclosure Package, with respect to the validity of the Securities, the Registration Statement, the Prospectus, the Disclosure Package and other related matters as you reasonably may request. In rendering the foregoing opinion, such counsel may rely, to the extent recited therein, as to matters involving the laws of any jurisdiction other than the States of Delaware and New York, upon opinions of local counsel. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Delaware LP AcCompany and other sources believed by them to be responsible.
(c) Subsequent to the execution and delivery of the Terms Agreement, there shall not have occurred (i) any Material Adverse Change which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the
Appears in 1 contract
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Date, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(bSection 3(b) and 6(bSection 4(b) hereof. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Date, you shall have received signed copies of:
1. The opinion, dated as of the applicable Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for the Company and the Western Gas Parties that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, corporate action by the Company and the Western Gas PartiesCompany. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas PartiesCompany.
(viiiii) The Securities covered by the applicable Terms Agreement have been duly authorized and, when issued and delivered in accordance with the terms of the applicable Terms Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(v) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. .
(vi) The Indenture is has been duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvivii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 Section 3 hereof.
(xviiviii) The execution and delivery of the applicable Terms Agreement and the Units DocumentsAgreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents Indenture in relation to the Securities do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviiiix) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner isCompany is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each thereof as described in the Prospectus, Prospectus will not be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxx) The statements in the Prospectus under the captions “Description of the Units,Notes” and “Description of the Purchase Contracts” and “Description of the Amortizing NotesDebt Securities,” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, Securities and the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiixi) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax ConsequencesConsiderations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iviii), (v), (vi), (vii), (viii), (xvii), (xviii), (xixx) and (xxxi) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
2. The opinion, dated as of the applicable Closing Date, of the General Counsel or Deputy General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(ii) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Delaware LP AcDisclosure Package.
(iii) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns all of the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances other than those arising under the $5,000,000 Revolving Credit Agreement, dated as of September 2, 2010, among the Company, as borrower, ▇▇ ▇▇▇▇▇▇ Chase Bank, N.A., as administrative agent, Bank of America, N.A., DnB NorBank ASA, the Royal Bank of Scotland plc, Societe Generale, and ▇▇▇▇▇ Fargo Bank, N.A., as syndication agents, and the several agents named therein.
(iv) The execution and delivery of the applicable Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Indenture do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, in all cases except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(v) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(vi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Terms Agreement by the Company, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Indenture, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (iii) such filings under the Act or the Exchange Act as may be required under Section 3 hereof.
(vii) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that constitutes the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United Stat
Appears in 1 contract
Conditions of Your Obligations. The Your obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement hereunder are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Datecontained, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other its obligations hereunder hereunder, and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No At Closing Time no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The price of the Securities and any other information previously omitted from the effective Registration Statement pursuant to Rule 415 of the 1933 Act Regulations shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to you of such timely filing, or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of the 1933 Act Regulations.
(b) At the applicable Closing Date, Time you shall have received signed copies of:
1. The the favorable opinion, dated as of the applicable Closing DateTime, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.& Worcester LLP, special counsel for the Company Company, in form and substance satisfactory to your counsel, to the Western Gas Parties effect that:
(i) The Company is a Maryland real estate investment trust duly organized, validly existing as a corporation and in good standing under the laws of the State of Delaware Maryland; each of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X under the 1933 Act) has been duly organized, is validly existing as a corporation or trust in good standing under the laws of its jurisdiction of incorporation or organization; each of the Company and its subsidiaries has the trust or corporate (as applicable) power and authority under to carry on its business as described in the Delaware General Corporation Law Registration Statement and its certificate of incorporation in the Prospectus and bylaws to own, lease and operate its properties properties; each of the Company and conduct its business as described in the Prospectus subsidiaries is duly qualified and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under as a foreign corporation or trust, as the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to owncase may be, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed authorized to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensingqualification, except to the extent that where the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effectmaterial adverse effect on the Company and its subsidiaries, taken as a whole.
(ivii) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws All of the jurisdiction issued and outstanding shares of its organizationbeneficial interest of, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to ownother ownership interests in, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties Company's subsidiaries have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed issued and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, are fully paid and non-assessable, and are owned by the Company free and clear of any security interest or other adverse interest (within the meaning of Article 8 of the Massachusetts Uniform Commercial Code).
(xiviii) The Registration Statement has become effective under the Act 1933 Act, and, to the knowledge of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Actis in effect, and no proceeding pursuant to Section 8A of the Act against the Company proceedings for such purpose are pending before or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424 under the 1933 Act has been made in accordance with said Rule 424.
(xviv) The Partnership Registration Statement Company has become effective under the Act and, requisite trust power and authority to such counsel’s knowledge, no stop order suspending enter into and perform this Agreement and to issue and deliver the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the CommissionSecurities.
(xviv) No authorization To such counsel's knowledge, except as disclosed in the Registration Statement or approval in the Prospectus, there is not now pending or other action by, and no notice to or filing withthreatened, any litigation, action, suit or proceeding to which the Company or any of its subsidiaries or the Advisor is or will be a party before or by any court or governmental authority agency or regulatory body body, which (eachA) might result in any material adverse change in the condition, financial or otherwise, or in the business, operations, earnings, prospects or properties of the Company and its subsidiaries, taken as a “Filing”whole, or (B) might materially and adversely affect the property or assets of the Company and its subsidiaries, taken as a whole, or (C) concerns the Company or any of its subsidiaries or the Advisor and is required to be made disclosed in the Prospectus, or obtained by (D) could adversely affect the Company or the Western Gas Parties under any laws for the due execution consummation of this Agreement and delivery of the Terms Agreement, the issuance of the Securities; to such counsel's knowledge, no contract or other document is required to be described in the incurrence Registration Statement or in the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required.
(vi) Except as otherwise disclosed in the Prospectus, to such counsel's knowledge, neither the Company, any of its subsidiaries nor the obligations set forth herein and therein, the consummation Advisor is in violation of the transactions herein and therein contemplated and its respective charter or by-laws or other organizational documents or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other material agreement, indenture or instrument to which the Company, any of its subsidiaries or the Advisor is a party or by which any of their respective properties or assets may be bound or affected, except for any such violation that would not have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings its subsidiaries taken as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereofa whole.
(xviivii) The execution and delivery of the applicable Terms Agreement and the Units DocumentsTo such counsel's knowledge, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation each of the Company’s certificate , its subsidiaries and the Advisor has such permits, licenses, franchises and authorizations of incorporation governmental or bylaws or regulatory authorities (together, "permits"), including, without limitation, under any applicable Environmental Law, as are necessary to own, lease and operate its properties and to engage in the laws of the State of New Yorkbusiness currently conducted by it, other than state securities laws or “Blue Sky” laws, except such licenses and permits as to which such counsel need express no opinionthe failure to own or possess will not in the aggregate have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole.
(xviiiviii) The execution execution, delivery and delivery performance of the applicable Terms this Agreement, the incurrence of the obligations set forth herein, and the consummation of the transactions herein contemplated will not conflict with or constitute a breach or violation of any of the terms or provisions of, or constitute a default under, (A) the Declaration of Trust or the By-laws of the Company or the charter or by-laws or other organizational documents of the Advisor or any Significant Subsidiary of the Company, or (B) except as disclosed in the Prospectus, any material agreement, indenture or other instrument to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets is bound, or (C) any laws, administrative regulations or rulings or decrees known to such counsel to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets may be subject.
(ix) No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any federal, Massachusetts or Maryland court or public, governmental or regulatory agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or the Advisor or any of their respective material properties or assets is required for the Company's execution, delivery and performance of this Agreement and the performance consummation of the transactions contemplated hereby, including, without limitation, the issuance, sale and delivery of the Securities pursuant to this Agreement, except such as have been obtained and such as may be required under foreign and state securities or "Blue Sky" laws.
(x) The Advisory Agreement has been duly authorized, executed and delivered by the Western Gas Parties parties thereto and constitutes the valid agreement of the parties thereto, enforceable in accordance with its obligations hereunder do not and will not result terms, except (a) as limited by the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors, (b) as limited by the effect of general principles of equity (regardless of whether enforcement is sought in a violation proceeding in equity or at law) and (c) insofar as the enforceability of the Partnership’s indemnity and contribution provisions contained in such agreement may be limited partnership agreementby federal or state securities laws and the public policy underlying such laws.
(xi) The Advisor (A) is a corporation duly organized, the General Partner’s limited liability company agreement or validly existing and in good standing under the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner isDelaware, and immediately after giving effect (B) has the requisite corporate power and authority to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each conduct its business as described in the Prospectus, will be, required Prospectus and to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedown and operate its material properties.
(xxxii) The statements in Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856-860 of the Prospectus Code for each of the fiscal years ended December 31, 1987 through December 31, 1997, and the Company's current anticipated investments and its current plan of operation will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the captions “Description Code; actual qualification of the Units,” Company as a real estate investment trust, however, will depend upon the Company's continued ability to meet, and “Description of the Purchase Contracts” its meeting, through actual annual operating results and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securitiesdistributions, the Indenture and various qualification tests imposed under the Purchase Contract Agreement in all material respectsCode.
(xxixiii) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package Registration Statement and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except for the financial statements, financial statements and the notes thereto and the schedules and other financial, accounting, reserve financial and production statistical data contained or incorporated by reference included therein and except for that part the Excluded Proceedings (as defined in the last paragraph of the Registration Statement that contains the Form T-1 this Section 5(b)), as to which such counsel need not express no view), at the time it was filed with the Commission, appeared on its face any opinion) comply as to be appropriately responsive form in all material respects to with the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and1933 Act.
(Bxiv) No information has come to such counsel’s attention that causes such special counsel to believe that (i) Each document incorporated by reference in the Registration Statement or and in the Partnership Registration StatementProspectus (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein and the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)), as of their respective effective dates and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view opinion) complied as to form when filed with the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part Commission in all material respects with the requirements of the Registration Statement that contains 1934 Act.
(xv) The statements (a) in the Prospectus under the captions "Description of Shares", "Description of Debt Securities", "Redemption; Business Combinations and Control Share Acquisitions", "Limitation of Liability; Shareholder Liability" and "Description of the Notes", (b) in Item 1 of the Company's Annual Report on Form T-1. With respect to subparagraphs 10-K under the caption "Regulation and Reimbursement", (Ac) in Part B ("Authorization of Additional Common Shares of Beneficial Interest") of Item 5 of the Company's Current Report on Form 8-K dated February 17, 1997 and (Bd) above, such counsel may state that their opinion and belief are based upon their participation in the preparation Item 5 of the Registration StatementCompany's Current Report on Form 8-K dated February 13, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of 1997 (excluding the statements contained or incorporated therein except as otherwise provided in clauses (ivunder the caption "Legal Proceedings"), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only in each case insofar as they purport to summarize matters arising under Massachusetts or Maryland law or the Federal laws federal law of the United States, or provisions of documents to which the laws Company is a party specifically referred to therein, are accurate summaries of the States of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP Acsuch legal matters or provisions.
Appears in 1 contract
Sources: Purchase Agreement (Health & Retirement Properties Trust)
Conditions of Your Obligations. The Your obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement hereunder are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Datecontained, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other its obligations hereunder hereunder, and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No At Closing Time no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The price of the Securities and any other information previously omitted from the effective Registration Statement pursuant to Rule 415 of the 1933 Act Regulations shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to you of such timely filing, or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of the 1933 Act Regulations.
(b) At the applicable Closing Date, Time you shall have received signed copies of:
1. The the favorable opinion, dated as of the applicable Closing DateTime, of Sullivan & Worcester LLP, counsel for the Company, in form and substa▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.sfactory to your counsel, special counsel for to the Company and the Western Gas Parties effect that:
(i) The Company is a Maryland real estate investment trust duly organized, validly existing as a corporation and in good standing under the laws of the State of Delaware Maryland; each of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X under the 1933 Act) has been duly organized, is validly existing as a corporation or trust in good standing under the laws of its jurisdiction of incorporation or organization; each of the Company and its subsidiaries has the trust or corporate (as applicable) power and authority under to carry on its business as described in the Delaware General Corporation Law Registration Statement and its certificate of incorporation in the Prospectus and bylaws to own, lease and operate its properties properties; each of the Company and conduct its business as described in the Prospectus subsidiaries is duly qualified and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under as a foreign corporation or trust, as the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to owncase may be, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed authorized to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensingqualification, except to the extent that where the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effectmaterial adverse effect on the Company and its subsidiaries, taken as a whole.
(ivii) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws All of the jurisdiction issued and outstanding shares of its organizationbeneficial interest of, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to ownother ownership interests in, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(vi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties Company's subsidiaries have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed issued and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, are fully paid and non-assessable, and are owned by the Company free and clear of any security interest or other adverse interest (within the meaning of Article 8 of the Massachusetts Uniform Commercial Code).
(xiviii) The Registration Statement has become effective under the Act 1933 Act, and, to the knowledge of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Actis in effect, and no proceeding pursuant to Section 8A of the Act against the Company proceedings for such purpose are pending before or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424 under the 1933 Act has been made in accordance with said Rule 424.
(xviv) The Partnership Registration Statement Company has become effective under the Act and, requisite trust power and authority to such counsel’s knowledge, no stop order suspending enter into and perform this Agreement and to issue and deliver the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the CommissionSecurities.
(xviv) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the SecuritiesTo such counsel's knowledge, except (i) such Filings as have been obtained disclosed in the Registration Statement or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, there is not now pending or threatened, any litigation, action, suit or proceeding to which the Company or any of its subsidiaries or the Advisor is or will bebe a party before or by any court or governmental agency or body, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
which (A) Each might result in any material adverse change in the condition, financial or otherwise, or in the business, operations, earnings, prospects or properties of the Registration StatementCompany and its subsidiaries, the documents incorporated by reference thereintaken as a whole, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective effective dates and as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1. With respect to subparagraphs (A) and (B) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and the Delaware LP Acor
Appears in 1 contract
Sources: Purchase Agreement (Health & Retirement Properties Trust)
Conditions of Your Obligations. The Your obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement hereunder are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Datecontained, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other its obligations hereunder hereunder, and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No At Closing Time no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The price of the Securities and any other information previously omitted from the effective Registration Statement pursuant to Rule 415 of the 1933 Act Regulations shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to you of such timely filing, or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of the 1933 Act Regulations.
(b) At the applicable Closing Date, Time you shall have received signed copies of:
1. The the favorable opinion, dated as of the applicable Closing DateTime, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.& Worcester LLP, special counsel for the Company Company, in form and substance satisfactory to your counsel, to the Western Gas Parties effect that:
(i) The Company is a Maryland real estate investment trust duly organized, validly existing as a corporation and in good standing under the laws of the State of Delaware Maryland; each of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X under the 1933 Act) has been duly organized, is validly existing as a corporation or trust in good standing under the laws of its jurisdiction of incorporation or organization; each of the Company and its subsidiaries has the trust or corporate (as applicable) power and authority to carry on its business as described in the Registration Statement and in the Prospectus and to own, lease and operate its properties; each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation or trust, as the case may be, authorized to do business in each jurisdiction in which its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) All of the issued and outstanding shares of beneficial interest of, or other ownership interests in, each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company free and clear of any security interest or other adverse interest (within the meaning of Article 8 of the Massachusetts Uniform Commercial Code).
(iii) The Registration Statement has become effective under the Delaware General Corporation Law 1933 Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424 under the 1933 Act has been made in accordance with said Rule 424.
(iv) The Company has the requisite trust power and authority to enter into and perform this Agreement and to issue and deliver the Securities.
(v) To such counsel's knowledge, except as disclosed in the Registration Statement or in the Prospectus, there is not now pending or threatened, any litigation, action, suit or proceeding to which the Company or any of its subsidiaries or the Advisor is or will be a party before or by any court or governmental agency or body, which (A) might result in any material adverse change in the condition, financial or otherwise, or in the business, operations, earnings, prospects or properties of the Company and its certificate subsidiaries, taken as a whole, or (B) might materially and adversely affect the property or assets of incorporation the Company and bylaws its subsidiaries, taken as a whole, or (C) concerns the Company or any of its subsidiaries or the Advisor and is required to be disclosed in the Prospectus, or (D) could adversely affect the consummation of this Agreement and the issuance of the Securities; to such counsel's knowledge, no contract or other document is required to be described in the Registration Statement or in the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required.
(vi) Except as otherwise disclosed in the Prospectus, to such counsel's knowledge, neither the Company, any of its subsidiaries nor the Advisor is in violation of its respective charter or by-laws or other organizational documents or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other material agreement, indenture or instrument to which the Company, any of its subsidiaries or the Advisor is a party or by which any of their respective properties or assets may be bound or affected, except for any such violation that would not have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole.
(vii) To such counsel's knowledge, each of the Company, its subsidiaries and the Advisor has such permits, licenses, franchises and authorizations of governmental or regulatory authorities (together, "permits"), including, without limitation, under any applicable Environmental Law, as are necessary to own, lease and operate its properties and conduct its business as described to engage in the Prospectus business currently conducted by it, except such licenses and permits as to which the Disclosure Packagefailure to own or possess will not in the aggregate have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole.
(iiviii) The Partnership execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not conflict with or constitute a breach or violation of any of the terms or provisions of, or constitute a default under, (A) the Declaration of Trust or the By-laws of the Company or the charter or by-laws or other organizational documents of the Advisor or any Significant Subsidiary of the Company, or (B) except as disclosed in the Prospectus, any material agreement, indenture or other instrument to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets is bound, or (C) any laws, administrative regulations or rulings or decrees known to such counsel to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets may be subject.
(ix) No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any federal, Massachusetts or Maryland court or public, governmental or regulatory agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or the Advisor or any of their respective material properties or assets is required for the Company's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the issuance, sale and delivery of the Securities pursuant to this Agreement, except such as have been obtained and such as may be required under foreign and state securities or "Blue Sky" laws.
(x) The Advisory Agreement has been duly authorized, executed and delivered by the parties thereto and constitutes the valid agreement of the parties thereto, enforceable in accordance with its terms, except (a) as limited by the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors, (b) as limited by the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (c) insofar as the enforceability of the indemnity and contribution provisions contained in such agreement may be limited by federal or state securities laws and the public policy underlying such laws.
(xi) The Advisor (A) is a corporation duly organized, validly existing as a partnership and in good standing under the laws of the State of Delaware Delaware, and (B) has the limited partnership requisite corporate power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Packageto own and operate its material properties.
(vxii) The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856-860 of the Code for each of the fiscal years ended December 31, 1987 through December 31, 1997, and the Company's current anticipated investments and its current plan of operation will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; actual qualification of the Company as a real estate investment trust, however, will depend upon the Company's continued ability to meet, and its meeting, through actual annual operating results and distributions, the various qualification tests imposed under the Code.
(xiii) The Registration Statement and the Prospectus and any supplements or amendments thereto (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein and the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)), as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the 1933 Act.
(xiv) Each Western Gas Party has document incorporated by reference in the Registration Statement and in the Prospectus (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein and the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)), as to which such counsel need not express any opinion) complied as to form when filed with the Commission in all requisite entity power to ownmaterial respects with the requirements of the 1934 Act.
(xv) The statements (a) in the Prospectus under the captions "Description of Shares", lease "Redemption; Business Combinations and operate its respective properties Control Share Acquisitions" and conduct its business"Limitation of Liability; Shareholder Liability" and (b) in Item 1 of the Company's Annual Report on Form 10-K under the caption "Regulation and Reimbursement", in each case in all material respects, insofar as described in they purport to summarize matters arising under Massachusetts or Maryland law or the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner federal law of the PartnershipUnited States, or provisions of documents to which the Company is a party specifically referred to therein, are accurate summaries of such legal matters or provisions.
(vixvi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract This Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication of the Amortizing Notes by the Trustee, upon payment and delivery of the Securities in accordance with the terms of the applicable Terms Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xixvii) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication All of the Securities by the Purchase Contract Agent and (b) the due execution and delivery outstanding shares of beneficial interest of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be are validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 otherwise described in the Registration Statement) and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares Securities have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof when issued and delivered to you against payment therefor in accordance with the terms of the Purchase Contracts and the Purchase Contract this Agreement, would will be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act andnonassessable, and will be free of any preemptive or, to such counsel’s 's knowledge, no stop order suspending similar rights that entitle any person (other than you, your successors and assigns) to acquire any Securities upon the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened issuance thereof by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery Company is not required to register as an "investment company" within the meaning of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion1940 Act.
(xix) Neither To the Companyextent required to be described therein, the Partnership nor the General Partner is, and immediately after giving effect Securities conform in all material respects to the offering and sale of descriptions in the Securities Registration Statement and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The Although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review and discussion of the contents thereof (including review and discussion of the contents of all documents incorporated by reference in the Registration Statement and the Prospectus), and nothing has come to the attention of such counsel that has caused them to believe that the Registration Statement (including the documents incorporated by reference therein, ) at the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of time the Registration Statement that contains the Form T-1 as to which such counsel need express no view)became effective, at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration StatementProspectus, as of their respective effective dates its date and as of Closing Time, as the date of the Terms Agreementcase may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) misleading or that any amendment or supplement to the Disclosure PackageProspectus, as of its respective date, and as of Closing Time, as the Applicable Timecase may be, contained any untrue statement of a material fact or omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except it being understood that in the case of each of clauses (i)-(iii) above, such counsel need not express any no view as with respect to (a) the financial statements, financial statements and the notes thereto and the schedules and other financial, accounting, reserve financial and production statistical data contained included or incorporated by reference therein and except for that part of in the Registration Statement or in the Prospectus or (b) the matters to be addressed in the opinion of Sherin & Lodgen LLP, special counsel to the Company, described below.) In rendering their opinion as aforesaid, ▇▇▇▇▇▇▇▇ & Worcester LLP may rely upon an opinion, dated as of Closing Time, of Piper & Marbury L.L.P. as to matters governed by Maryland law, provided that contains such reliance is expressly authorized by such opinion and a copy of such opinion is delivered to you and is, in form and substance, satisfactory to you and your counsel. In addition, in rendering such opinion, such counsel may state that their opinion as to laws of the Form T-1. With State of Delaware is limited to the Delaware General Corporation Law and that their opinion with respect to subparagraphs the qualification of the Company and its subsidiaries to do business in jurisdictions other than their respective jurisdictions of organization is based solely upon certificates to such effect issued by an appropriate official of the applicable jurisdictions. The opinion of Piper & Marbury L.L.P. described in the paragraph above shall be rendered to you at the request of the Company and shall so state therein. In addition, you shall have received at Closing Time an opinion (Asatisfactory to you and your counsel) of Sherin & Lodgen LLP, special counsel for the Company, dated as of Closing Time, to the effect that the statements describing the proceedings (the "Excluded Proceedings") in Part I, Item 3 of the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 under the caption "Legal Proceedings", insofar as they purport to summarize legal proceedings constitute a fair summary of such legal proceedings.
(c) You shall have received at Closing Time an opinion, dated as of Closing Time, of Hunton & ▇▇▇▇▇▇▇▇, your counsel, as to the matters referred to in clauses (iii), (xiii), (xvi) and (Bxx) aboveof the foregoing paragraph (b). In giving such opinion with respect to the matters covered by clause (xx), such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus Statement and the Disclosure Package, Prospectus and any amendments or supplements thereto, thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) abovespecified. In rendering their opinion as aforesaid, Hunton & ▇▇▇▇▇▇▇▇ may rely upon an opinion, dated as of Closing Time, of Piper & Marbury L.L P. as to matters governed by Maryland law, and the opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP referred to above as to matters governed by Massachusetts law. In addition, in rendering such opinion, such special counsel may opine only state that their opinion as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware is limited to the Delaware General Corporation Law.
(d) At Closing Time (i) the Registration Statement and the Delaware LP AcProspectus shall contain all statements which are required to be stated therein in accordance with the 1933 Act and the 1933 Act Re
Appears in 1 contract
Sources: Purchase Agreement (Health & Retirement Properties Trust)
Conditions of Your Obligations. The Your obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement hereunder are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms Agreement and as of the applicable Closing Datecontained, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective covenants and other its obligations hereunder hereunder, and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereof. No At Closing Time no stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The price of the Securities and any other information previously omitted from the effective Registration Statement pursuant to Rule 415 of the 1933 Act Regulations shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to you of such timely filing, or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of the 1933 Act Regulations.
(b) At the applicable Closing Date, Time you shall have received signed copies ofreceived:
(1. ) The favorable opinion, dated as of the applicable Closing DateTime, of Sullivan & Worcester LLP, counsel for the Company, in form and substan▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.factory to your counsel, special counsel for to the Company and the Western Gas Parties effect that:
(i) The Company company is a Maryland real estate investment trust duly organized, validly existing as a corporation and in good standing under the laws of the State of Delaware Maryland; each of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X under the 1933 Act) has been duly organized, is validly existing as a corporation or trust in good standing under the laws of its jurisdiction of incorporation or organization; each of the Company and its subsidiaries has the trust or corporate (as applicable) power and authority to carry on its business as described in the Registration Statement and in the Prospectus and to own, lease and operate its properties; each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation or trust, as the case may be, authorized to do business in each jurisdiction in which its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) All of the issued and outstanding shares of beneficial interest of, or other ownership interests in, each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company free and clear of any security interest or other adverse interest (within the meaning of Article 8 of the Massachusetts Uniform Commercial Code).
(iii) The Registration Statement has become effective under the Delaware General Corporation Law 1933 Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424 under the 1933 Act has been made in accordance with said Rule 424.
(iv) The Company has the requisite trust power and authority to enter into and perform this Agreement and the Indenture and to issue and deliver the Securities.
(v) To such counsel's knowledge, except as disclosed in the Registration Statement or in the Prospectus, there is not now pending or threatened, any litigation, action, suit ox proceeding to which the company or any of its subsidiaries or the Advisor is or will be a party before or by any court or governmental agency or body, which (A) might result in any material adverse change in the condition, financial or otherwise, or in the business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and its certificate subsidiaries, taken as a whole, or the Advisor or (B) might materially and adversely affect the property or assets of incorporation the Company and bylaws its subsidiaries, taken as a whole, or the Advisor, or (C) concerns the Company or any of its subsidiaries or the Advisor and is required to be disclosed in the Prospectus, or (D) could adversely affect the consummation of this Agreement and the issuance of the Securities; to such counsel's knowledge, no contract or other document is required to be described in the Registration Statement or in the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required.
(vi) Except as otherwise disclosed in the Prospectus, to such counsel's knowledge, neither the Company, any of its subsidiaries nor the Advisor is in violation of its respective charter or by-laws or other organizational documents or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other material agreement, indenture or instrument to which the Company, any of its subsidiaries or the Advisor is a party or by which any of their respective properties or assets may be bound or affected, except for any such violation that would not have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole, or the Advisor, as the case may be.
(vii) To such counsel's knowledge, each of the Company, its subsidiaries and the Advisor has such permits, licenses, franchises and authorizations of governmental or regulatory authorities (together, "permits"), including, without limitation, under any applicable Environmental Law, as are necessary to own, lease and operate its properties and conduct its business as described to engage in the Prospectus business currently conducted by it, except such licenses and permits as to which the Disclosure Packagefailure to own or possess will not in the aggregate have a material adverse effect on the business, operations, earnings, business prospects, properties or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole, or the Advisor, as the case may be.
(iiviii) The Partnership execution, delivery and performance of this Agreement and the Indenture, and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach or violation of any of the terms or provision of, or constitute a default under, (A) the Declaration of Trust or the By-laws of the Company or the charter or by-laws or other organizational documents of the Advisor or any Significant Subsidiary of the Company, or (B) except as disclosed in the Prospectus, any material agreement, indenture or other instrument to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets is bound, or (C) any laws, administrative regulations or rulings or decrees known to such counsel to which the Company, any of its Significant Subsidiaries or the Advisor or their respective material properties or assets may be subject.
(ix) No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any federal, Massachusetts or Maryland court or public, governmental or regulatory agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or the Advisor or any of their respective material properties or assets is required for the Company's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the issuance, sale and delivery of the Securities pursuant to this Agreement, except such as have been obtained and such as may be required under foreign and state securities or "Blue Sky" laws.
(x) The Advisory Agreement has been duly authorized, executed and delivered by the parties thereto and constitutes the valid agreement of the parties thereto, enforceable in accordance with its terms, except (a) as limited by the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors, (b) as limited by the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (c) insofar as the enforceability of the indemnity and contribution provisions contained in such agreement may be limited by federal or state securities laws and the public policy underlying such laws.
(xi) The Advisor (A) is a corporation duly organized, validly existing as a partnership and in good standing under the laws of the State of Delaware Delaware, and (B) has the limited partnership requisite corporate power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Packageto own and operate its material properties.
(vxii) The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856-860 of the Code for each of the fiscal years ended December 31, 1987 through December 31, 1996, and the Company's current anticipated investments and its current plan of operation will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; actual qualification of the Company as a real estate investment trust, however, will depend upon the Company's continued ability to meet, and its meeting, through actual annual operating results and distributions, the various qualification tests imposed under the Code.
(xiii) The Registration Statement and the Prospectus and any supplements or amendments thereto (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)) and the part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the 1933 Act.
(xiv) Each Western Gas Party has document incorporated by reference in the Registration Statement and in the Prospectus (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, the Excluded Proceedings (as defined in the last paragraph of this Section 5(b)) and the part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act, as to which such counsel need not express any opinion) complied as to form when filed with the Commission in all requisite entity power to ownmaterial respects with the requirements of the 1934 Act.
(xv) The statements (a) in the Prospectus under the captions "Description of Shares", lease "Description of Debt Securities", "Redemption; Business Combinations and operate its respective properties Control Share Acquisitions", "Limitation of Liability; Shareholder Liability" and conduct its business"Description of Notes", (b) in Item 1 of the Company's Annual Report on Form 10-K under the caption "Regulation and Reimbursement", (c) in Part B ("Authorization of Additional Common Shares of Beneficial Interest") of Item 5 of the Company's Current Report on Form 8-K dated February 17, 1997 and (d) Item 5 of the Company's Current Report on Form 8-K dated February 13, 1997 (excluding the statements under the caption "Legal Proceedings"), in each case in all material respects, insofar as described in they purport to summarize matters arising under Massachusetts or Maryland law or the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner federal law of the PartnershipUnited States, or provisions of documents to which the Company is a party specifically referred to therein, are accurate summaries of such legal matters or provisions.
(vixvi) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, by the Company This Agreement and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, executed and delivered by the Company. Assuming the due authentication .
(xvii) The Indenture is a valid and binding obligation of the Amortizing Notes by Company enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and equitable principles; and the TrusteeIndenture has been duly qualified under the 1939 Act.
(xviii) The authorized, upon payment issued and delivery outstanding capital ▇▇▇▇▇ ▇f the Company is correctly set forth in all material respects in the Prospectus under the caption "Capitalization".
(xix) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Securities Indenture and delivered and paid for in accordance with the terms of the applicable Terms this Agreement, the Amortizing Notes will constitute be valid and legally binding obligations of the Company, Company enforceable against the Company in accordance with their terms subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and equitable principles; and the holders of the Securities are entitled to the benefits benefit of the Indenture. .
(xx) The Amortizing Notes Company is not required to register as an "investment company" within the meaning of the 1940 Act.
(xxi) To the extent required to be described therein, the Securities and the Indenture and the rights related thereto conform in all material respects to the description thereof descriptions in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xiv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xv) The Partnership Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Partnership, the Western Gas Parties or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(xvi) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company and the Western Gas Parties of their respective obligations hereunder and by the Company under the Indenture in relation to the Securities, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections 4 or 5 hereof.
(xvii) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xx) The statements in the Prospectus under the captions “Description of the Units,” and “Description of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respects.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxii) The Although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A) Each of the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review and discussion of the contents thereof (including review and discussion of the contents of all documents incorporated by reference in the Registration Statement and the Prospectus), and nothing has come to the attention of such counsel that has caused them to believe that the Registration Statement (including the documents incorporated by reference therein, ) at the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of time the Registration Statement that contains the Form T-1 as to which such counsel need express no view)became effective, at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunder; and
(B) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration StatementProspectus, as of their respective effective dates its date and as of Closing Time, as the date of the Terms Agreementcase may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) misleading or that any amendment or supplement to the Disclosure PackageProspectus, as of its respective date, and as of Closing Time, as the Applicable Timecase may be, contained any untrue statement of a material fact or omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except it being understood that in the case of each of clauses (i)-(iii) above, such counsel need not express any no view as with respect to (a) the financial statements, financial statements and the notes thereto and the schedules and other financial, accounting, reserve financial and production statistical data contained included or incorporated by reference therein and except for that in the Registration Statement or in the Prospectus, (b) the matters to be addressed in the opinion of Sherin & Lodgen LLP, special counsel to the Company, described below, or (c) the part of the Registration Statement that contains constitutes the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act). With respect In rendering their opinion as aforesaid, Sullivan & Worcester LLP may rely upon an opinion, dated as of Closing ▇▇▇▇, ▇f Piper & Marbury L.L.P. as to subparagraphs (A) matters governed by Maryland law, provided that such reliance is expressly authorized by such opinion and (B) abovea copy of such opinion is delivered to you and is, in form and substance, satisfactory to you and your counsel. In addition, in rendering such opinion, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xix) and (xx) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware and is limited to the Delaware LP AcGeneral Corporation Law and that their opinion with respect to the qualification of the Company and its subsidiaries to do business in jurisdictions other than their respective jurisdictions of organization is based solely upon certificates to such effect issued by an appropriate official of the applicable jurisdictions. The opinion of Piper & Marbury L.L.P. described in the paragraph above shall be rendered to you at the request of the Company and shall so state therein. In addition, you shall have received at Closing Time an opinion (satisfactory to you and your counsel) of Sherin & Lodgen LLP, special counsel for the Company, dated as of Closing Time, to the effect that the proceedings (the "Excluded Proceedings") described in Item 5 of the Company's Current Report on Form 8-K dated February 13, 1997 under the caption "Legal Proceed
Appears in 1 contract
Sources: Purchase Agreement (Health & Retirement Properties Trust)
Conditions of Your Obligations. The obligations of the Underwriters to purchase Securities Shares pursuant to any Terms this Agreement are subject to the accuracy in all material respects, unless otherwise qualified by materiality (in which case such representations and warranties will be accurate), respects of the representations and warranties on the part of each the Company and the Western Gas Parties herein contained as of the date of the Terms this Agreement and as of the applicable Closing Datetime of purchase and any additional time of purchase, if applicable, to the performance by the Company and the Western Gas Parties in all material respects of all of their respective its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus, the Partnership Prospectus and the final term sheet free writing prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Sections 4(b), 5(b) and 6(b) hereofAct. No stop order suspending the effectiveness of the Registration Statement or the Partnership Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Datetime of purchase and the additional time of purchase, if any, you shall have received signed copies of:
1. (i) The opinion, dated as of the applicable Closing Datetime of purchase and the additional time of purchase, if any, of Akin Gump S▇▇▇▇▇▇ & ▇▇H▇▇▇▇ L.L.P.& F▇▇▇ LLP, special counsel for the Company and the Western Gas Parties that:
(iA) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority under the Delaware General Corporation Law and its certificate of incorporation and bylaws to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(ii) The Partnership is validly existing as a partnership in good standing under the laws of the State of Delaware and has the limited partnership power and authority under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and its certificate of limited partnership and partnership agreement to own, lease and operate its properties and conduct its business as described in the Partnership Prospectus and the Disclosure Package.
(iii) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(iv) Each domestic Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(v) Each Western Gas Party has all requisite entity power to own, lease and operate its respective properties and conduct its business, in each case in all material respects, as described in the Disclosure Package and the Partnership Prospectus. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership.
(viB) The execution and delivery of the applicable Terms Agreement, incorporating the Standard Provisions, Underwriting Agreement by the Company and the Western Gas Parties have been duly authorized by all necessary corporate, limited partnership or limited liability company action, as the case may be, by the Company and the Western Gas Parties. The applicable Terms Agreement, incorporating the Standard Provisions, has been duly and validly executed and delivered by the Company and the Western Gas Parties.
(vii) The execution and delivery of the Indenture by the Company has been duly authorized by all necessary corporate action by the Company. The Indenture has been duly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package. The Indenture is duly qualified under the Trust Indenture Act.
(viii) The execution and delivery of the Purchase Contract Agreement by the Company has been duly authorized by all necessary corporation action by the Company. The Purchase Contract Underwriting Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The Purchase Contract Agreement conforms in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(ix) The Purchase Contracts have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Purchase Contracts by the Purchase Contract Agent and (b) the due execution and delivery of the Purchase Contracts by the Purchase Contract Agent as attorney-in-fact for the holders of the Purchase Contracts, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Purchase Contracts conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(x) The Amortizing Notes have been duly authorized, validly executed and delivered by the Company. Assuming the due authentication .
(C) The authorized capital stock of the Amortizing Notes by the TrusteeCompany consists of 1,000,000,000 shares of common stock, upon par value $0.10 per share, and 2,000,000 shares of preferred stock, par value $1.00 per share.
(D) The [Firm] [Additional] Shares have been duly authorized and, when issued and delivered against payment and delivery of the Securities therefore in accordance with the terms of the applicable Terms Underwriting Agreement, the Amortizing Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture. The Amortizing Notes conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xi) The Securities have been have been duly authorized, executed and issued by the Company. Assuming (a) due authentication of the Securities by the Purchase Contract Agent and (b) the due execution and delivery of the Securities by the Purchase Contract Agent as attorney-in-fact for the holders of the Securities, upon payment and delivery of the Securities in accordance with terms of the applicable Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. The Securities conform in all material respects to the description thereof in the Prospectus and the Disclosure Package.
(xii) The Partnership Common Units initially deliverable upon settlement of the Purchase Contracts have been duly authorized by all necessary limited partnership action of the Partnership and, assuming delivery of the Partnership Common Units upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable (except as such nonassessability may be affected by Sections 17-303will not have been issued in violation of any preemptive or similar rights created under the Company’s Certificate of Incorporation or Bylaws, 17-607 and 17-804 of under the Delaware LP Act)General Corporation Law or under any contracts filed or incorporated by reference as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2008, the Company’s Quarterly Report on Form 10-Q for the three months ended March 31, 2009, any Current Report on Form 8-K filed by the Company during 2009 or the Registration Statement.
(xiii) The Maximum Number of Issuable APC Shares have been duly authorized by all necessary corporate action of APC and reserved for issuance upon settlement of the Purchase Contracts and, assuming issuance of the APC Common Stock upon settlement of the Purchase Contracts on the date hereof in accordance with the terms of the Purchase Contracts and the Purchase Contract Agreement, would be validly issued, fully paid and non-assessable.
(xivE) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A of the Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, proceedings therefor initiated or threatened by the Commission.
(xvF) The Partnership Registration Statement has become effective statements in the Prospectus under the Act and, to caption “Description of Common Stock,” insofar as such counsel’s knowledge, no stop order suspending the effectiveness statements constitute a summary of the Partnership Registration Statement has been issued under the Act, and no proceeding pursuant to Section 8A terms of the Act against Common Stock, fairly summarize the Partnership, terms of the Western Gas Parties or Common Stock in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commissionall material respects.
(xviG) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required to be made or obtained by the Company or the Western Gas Parties under any laws for the due execution and delivery of the Terms Agreement, Underwriting Agreement by the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated Company and the performance by the Company and the Western Gas Parties of their respective its obligations hereunder and by the Company under the Indenture in relation to the Securitiesthereunder, except (i) such Filings as have been obtained or made, (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities Shares by the Underwriters, and (iii) such filings under the Act or the Exchange Act as may be required under Sections Section 4 or 5 hereof.
(xviiH) The execution and delivery of the applicable Terms Agreement and the Units Documents, the issuance of the Securities, the incurrence of the obligations set forth herein and therein, the consummation of the transactions herein and therein contemplated and the performance by the Company of its obligations hereunder and under the Units Documents do is not and will not result in a violation of the Company’s certificate of incorporation or bylaws or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xviii) The execution and delivery of the applicable Terms Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated and the performance by the Western Gas Parties of its obligations hereunder do not and will not result in a violation of the Partnership’s limited partnership agreement, the General Partner’s limited liability company agreement or the laws of the State of New York, other than state securities laws or “Blue Sky” laws, as to which such counsel need express no opinion.
(xix) Neither the Company, the Partnership nor the General Partner is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, and the offering and delivery of the Deliverable Partnership Common Units, each as described in the Prospectus, will be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(xxI) The statements in execution and delivery of the Prospectus Underwriting Agreement by the Company do not, and the performance of its obligations under the captions “Description Underwriting Agreement will not, result in a violation of the Units,” and “Description Company’s certificate of the Purchase Contracts” and “Description of the Amortizing Notes” insofar as such statements constitute a summary of the terms of the Securities and the Indenture, fairly summarize the terms of the Securities, the Indenture and the Purchase Contract Agreement in all material respectsincorporation or bylaws.
(xxi) The statements in the Partnership Prospectus under the captions “Description of the Common Units,” “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of Our Partnership Agreement Relating to Cash Distributions” and “The Partnership Agreement of Western Gas Equity Partners, LP” insofar as such statements constitute a summary of the terms of the Partnership Common Units or purport to summarize any agreement, statute or regulation or refer to statements of law or legal conclusions, fairly summarize the terms of the Partnership Common Units or are accurate and fair summaries in all material respects.
(xxiiJ) The statements included in the Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(xxiii) The statements included in the Partnership Prospectus under the heading “Material Considerations for Non-U.S. Federal Income Tax ConsequencesHolders,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. Such special counsel shall also state that:
(A1) Each of the Registration Statement, the documents incorporated by reference therein, the Partnership Registration Statement, the documents incorporated by reference therein, the Prospectus and the Partnership Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1 as to which such counsel need express no view), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act and the Exchange Act and the rules and regulations thereunderAct; and
(B2) No information has come to such counsel’s attention that causes such special counsel to believe that (i) the Registration Statement or the Partnership Registration Statement, as of their respective its effective dates date and as of the date of the Terms Underwriting Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or the Partnership Prospectus, as amended or supplemented, if applicable, as of their respective dates its date and as of the Closing Datetime of purchase, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein and except for that part of the Registration Statement that contains the Form T-1therein. With respect to subparagraphs (A1) and (B2) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement, the Partnership Registration Statement, the Prospectus, the Partnership Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption of any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein except as otherwise provided in clauses (iv), (v), (vi), (vii), (viii), (xvii), (xviii), (xixC) and (xxI) above. In rendering such opinion, such special counsel may opine only as to the Federal laws of the United States, the laws of the States of Texas and New York and Texas and the General Corporation Law of the State of Delaware Delaware. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources. In rendering such opinion, special counsel for the Company may have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
(ii) The opinion dated as of the time of purchase and the additional time of purchase, if any, of the General Counsel or Deputy General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(A) The Company and each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a Material Adverse Effect.
(B) Each Significant Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its organization, has the entity power and authority under the applicable entity law and its certificate of incorporation and bylaws or similar organizational documents to own, lease and operate its properties and conduct its business as described in the Prospectus and the Disclosure Package.
(C) The issued and outstanding common stock or other equity interests of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; and the Company owns the issued and outstanding common stock or other equity interests of each Significant Subsidiary free and clear of any mortgages, liens or similar encumbrances.
(D) The execution and delivery of the Underwriting Agreement, the issuance of the Shares, the incurrence of the obligations set forth therein and the consummation of the transactions therein contemplated do not and will not conflict with or constitute or result in a breach of, or default under: (a) any judgment, order or decree of the United States government, governmental instrumentality thereof or any United States court having jurisdiction over the Company, any Significant Subsidiary, or any of their property, which is material to such entities, taken as a whole; (b) any provision of any contract, indenture, mortgage, loan agreement, note, lease or similar agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which they or any material part of their property is bound; or (c) federal laws or the General Corporation Law of the State of Delaware, except for such conflicts, breaches or defaults as would not have a Material Adverse Effect.
(E) Neither the Company nor any of its subsidiaries is in violation of its charter or bylaws or similar organizational documents and, to the best of such counsel’s knowledge no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in a Registration Statement or the Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, except for such defaults as would not have a Material Adverse Effect.
(F) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for the due execution and delivery of the Underwriting Agreement by the Company and the performance by the Company of its obligations thereunder, except (i) such other Filings as have been obtained or made and (ii) Filings under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(G) To the best of such counsel’s knowledge, there is no litigation or governmental proceeding instituted or threatened against the Company or any Significant Subsidiary which would be required to be disclosed in the Prospectus or the Disclosure Package and which is not disclosed. Such counsel shall also state that:
(1) Each of the Registration Statement, the documents incorporated by reference therein, the Prospectus and any supplements or amendments thereto (except the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein), at the time it was filed with the Commission, appeared on its face to be appropriately responsive in all material respects to the requirements of the Act; and
(2) No information has come to such counsel’s attention that causes such counsel to believe that (i) the Registration Statement, as of its effective date and as of the date of the Underwriting Agreement, contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, as amended or supplemented, if applicable, as of its date and as of the time of purchase, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in the case of each of clauses (i)-(iii) above, such counsel need not express any view as to the financial statements, financial schedules and other financial, accounting, reserve and production data contained or incorporated by reference therein. With respect to subparagraphs (1) and (2) above, such counsel may state that his or her opinion and belief are based upon his or her participation in the preparation of the Registration Statement, the Prospectus and the Disclosure Package, and any amendments or supplements thereto, and review and discussion of the contents thereof, but are without independent check or verification except as specified and without assumption for any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated therein. In rendering the foregoing opinion or opinions, such counsel may opine only as to the Federal laws of the United States, the laws of the State of Texas and the statutes of the State of Delaware LP Acgoverning corporations, partnerships and limited liability companies. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible. In rendering the foregoing opinion, such counsel may have received and may rely upon such certificates and other documents and information as he or she may reasonably request to pass upon such matters.
(iii) The opinion or opinions, dated as of the time of purchase and the additional time of purchase, if any, of counsel for the Underwriters specified in the Prospectus and the Disclosure Package, with respect to the validity of the Shares, the Registration Statement, the Prospectus, the Disclosure Package and other related matters as you reasonably may request. In rendering the foregoing opinion, such counsel may rely, to the extent recited therein, as to matters involving the laws of any jurisdiction other than the State of Delaware, upon opinions of local counsel. Such counsel may also state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any Material Adverse Change which, in your judgment, is material and adverse and makes it impractical or inadvisable to market the Shares; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), 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 an announcement, following a ratings upgrading by a ratings agency, that the Company has been placed on negative outlook by such ratings agency); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls, the effect of which is such as to make it, in your judgment, impractical to
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