Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto. (b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a). (c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche LLP, independent auditors of the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter. (i) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto). (e) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d). (f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes. (g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC. (h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts. (i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer). (j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇▇▇▇▇ LLP▇▇▇▇▇▇▇ PC, counsel for the Company, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of New Jersey law upon the opinion opinions of Winston & ▇▇▇▇▇▇▇▇▇▇ LLP ▇▇▇▇▇▇▇ PC referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering each Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandumletter. References to the Offering Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantor, or any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Final Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorand its subsidiaries, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholdersstockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantorand its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering, sale or delivery the Notes on the terms and in the manner described in the Offering Final Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Final Memorandum entitled “Use of Proceeds”, “Security Ownership of Certain Beneficial Owners and Management”, “Certain Relationships and Related Party Transactions” and “Description of Certain Indebtedness” shall have changed, nor shall there have been any change in the information with respect to the directors and officers of the Company from what is set forth in the section of the Final Memorandum entitled “Management”, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Final Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer Vice President of Planning and Finance of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section Sections 6(d) and (e).
(fg) There The Notes shall have received initial ratings of not less than B- by Standard & Poor’s and Caa1 by Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gh) The Notes shall have been designated for trading on The Portal Market.
(i) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Depository Trust Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified .
(k) The Company and the bank agents and lenders party thereto shall have entered into the Senior Secured Credit Facility in this Section 6 is not satisfied when form and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice substance reasonably satisfactory to the Company at any time Representative. Prior to or concurrently with the consummation of the offering of the Notes on or prior to the Closing Date, which termination the Company shall be without liability on have made the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationinitial borrowings under the Senior Secured Credit Facility as contemplated by the Offering Memorandum.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company and each Guarantor in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s and the Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company and each Guarantor of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston each of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP counsel for the Company with respect to corporate matters in the form of Exhibit A, (ii) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP counsel for the Company with respect to collateral matters in form and substance reasonably satisfactory to the Initial Purchasers, (iii) K&L Gates LLP, special healthcare counsel to the Company in form and substance reasonably satisfactory to the Initial Purchasers, (iv) K&L Gates LLP, special counsel to the Company and the Guarantors with respect to Florida law matters in form and substance reasonably satisfactory to the Initial Purchasers, (v) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, PC, special counsel for to the Company, Company and the Guarantors with respect to California law matters in form and substance reasonably satisfactory to the Initial Purchasers, (vi) ▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇, special counsel to the Company and the Guarantors with respect to Maryland law matters in form and substance reasonably satisfactory to the Initial Purchasers, (vii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, special counsel to the Company and the Guarantors with respect to Michigan law matters in form and substance reasonably satisfactory to the Initial Purchasers, (viii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PLLC, special counsel to the Company and the Guarantors with respect to Nevada law matters in form and substance reasonably satisfactory to the Initial Purchasers, (ix) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., special counsel to the Company and the Guarantors with respect to North Carolina law matters in form and substance reasonably satisfactory to the Initial Purchasers and (x) Womblye ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to the effect set forth Company and the Guarantors with respect to South Carolina law matters in Exhibit A heretoform and substance reasonably satisfactory to the Initial Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP referred shall have received and may rely upon such certificates and other documents and information as it may reasonably request to in Section 6(a)pass upon such matters.
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Ernst & Young LLP and Deloitte & Touche LLPCo. S.R.L., independent auditors of the Companyregistered public accounting firms, respectively, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters underwriters. The comfort letter to be provided by ▇▇▇▇▇ & Young LLP will be issued with respect to the historical consolidated financial statements of Radiation Therapy Services Holdings, Inc. and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter , and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. The comfort letter to be provided by Deloitte & Co. S.R.L. will be issued with respect to the combined special-purpose financial statements of the operating entities of Medical Developers LLC and their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. In both letters they shall include a “cut-off date” within five business days of the date of such letter. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the any of its subsidiaries nor any other Guarantor, shall have sustained, since the date of the latest audited historical consolidated financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering each Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company and its subsidiaries or the any other Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholdersstockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company and its subsidiaries or the any other Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers▇▇▇▇▇ Fargo, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds”, “Certain Relationships and Related Party Transactions” and “Business—Government Regulation” shall have changed, if the effect of any such change, individually or in the aggregate, in the sole judgment of ▇▇▇▇▇ Fargo makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance reasonably satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section Sections 6(d) and (e).
(fg) There Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gh) The Notes shall be eligible for clearance and settlement through DTCthe Depository Trust Company, Clearstream Banking and the Euroclear System as indirect participants of DTCSystem.
(hi) The Company and the Guarantor Collateral Agent shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasersreceived, and the Initial Purchasers shall have received executed copies thereof. The received, a copy of, each of (i) the Security Agreement, (ii) the Intercreditor Agreement, (iii) UCC financing statements naming the Company and each Guarantor, as applicable, as a debtor and the Collateral Agent as the secured party, in each case, in appropriate form for filing and (iv) short form security agreements in appropriate form for filing with the United States Patent and Trademark Office and/or United States Copyright Office to the extent required under the terms of the Security Agreement; provided that to the extent any such document or instrument (other than UCC financing statements) is not provided on or prior to the Closing Date after the Company’s use of commercially reasonable efforts to do so, the delivery of such document or instrument shall not constitute a condition precedent to the obligations of the Initial Purchasers to purchase and pay for the Notes as provided herein on the Closing Date but shall be required to be delivered after the Closing Date.
(j) On or prior to the Closing Date, certificates representing all of the capital stock of the Company and its subsidiaries and all promissory notes held by the Company and the Guarantor Guarantors, to the extent required to be pledged and delivered as Collateral under the Security Documents, shall have executed and been delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial PurchasersSenior Secured Facility Agent, together with any necessary endorsements duly executed in blank.
(k) Subject to any limitations or conditions specified in the Security Documents, the Collateral Agent shall have received reasonably acceptable evidence of payment or arrangements for payment by the Company and the Guarantors of all applicable recording taxes, fees, charges, costs and expenses required for the filings, recordings, registrations and other actions referred to in Section 6(i).
(l) The Initial Purchasers shall have received copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name the Company or any Guarantor as debtor and that are recorded in the United States Patent and Trademark Office or the United States Copyright Office or filed in those state jurisdictions in which the Company or any Guarantor is organized or has its principal place of business, as applicable, and such executed counterpartsother searches that are required by the Security Documents.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(jm) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on .
(n) On or prior to before the Closing Date, which termination the Company shall be without liability on enter into the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationSenior Secured Facility in a manner consistent with the description in the Memorandum.
Appears in 1 contract
Sources: Purchase Agreement (Radiation Therapy Services Holdings, Inc.)
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy of the representations and warranties of the Company and the Notes Guarantor contained herein or in Section 1 hereof, in each case as certificates of any officer of the date hereof and as Company or any of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofits subsidiaries, to the performance by the Company and Notes Guarantor of its their respective covenants and agreements hereunder other obligations hereunder, and to the following additional further conditions:
(a) The Initial Purchasers At the Closing Time, the Representatives shall have received (i) an the favorable opinion, dated the Closing DateTime, of Winston ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A A-1 hereto.
, (bii) The Initial Purchasers shall have received an the favorable opinion, dated the Closing DateTime, of ▇▇▇▇▇ ▇▇ . ▇▇▇▇▇▇, internal counsel of the Company, to the effect set forth in Exhibit A-2 hereto, and (iii) the favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel Canadian counsel for the Company, to the effect set forth in Exhibit A-3 hereto and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, together with respect to the issuance and sale signed or reproduced copies of such letter for each of the Notes other Initial Purchasers and to such other related matters further effect as counsel to the Initial Purchasers may reasonably require, and request. In giving such opinions such counsel or the internal counsel of the Company may rely upon the opinions of counsel reasonably satisfactory to counsel for the Initial Purchasers. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(b) At the Closing Time, the Representatives shall have furnished to such counsel such documents as it may reasonably request for received the purpose of enabling it to pass upon such matters. In rendering such favorable opinion, such counsel may rely as to certain matters dated the Closing Time, of law upon the opinion of Winston ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP referred L.L.P., U.S. counsel for the Initial Purchasers and Torys LLP, Canadian counsel for the Initial Purchasers and any additional local counsel required to give favorable opinions in Section 6(a)each jurisdiction of Canada where sales occur, together with signed or reproduced copies of such letter for each of the other Initial Purchasers in form and substance reasonably satisfactory to the Representatives. In giving its opinion ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel reasonably satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(c) The Initial Purchasers shall have received on each of the date hereof and At the Closing Date a letterTime, dated there shall not have been, since the date hereof or since the respective dates as of which information is given in the General Disclosure Package or the Final Offering Memorandum, a Material Adverse Effect, and the Representatives shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing DateTime, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the case Closing Time and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Time. The officers signing and delivering such certificate may berely upon the best of his or her knowledge as to proceedings threatened.
(d) At the time of the execution of this Agreement, the Representatives shall have received letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche LLP, independent auditors of the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers At the Closing Time, the Representatives shall have received a certificateletter from ▇▇▇▇▇ & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated as of the Closing Time, to the effect that they reaffirm the statements made in their respective letters furnished pursuant to subsection (d) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, addressed to the Representatives and signed by certain shareholders, officers and directors of the Company listed on Schedule F hereto relating to sales and certain other dispositions of Common Stock or certain other securities, shall have been delivered to the Representatives on or before the date hereof, and shall be in full force and effect at the Closing Time.
(g) At the Closing Time, the Conversion Shares shall have been approved for listing on Nasdaq, subject only to official notice of issuance, and conditionally approved for listing on the TSX, subject to satisfaction of customary TSX listing requirements.
(h) In the event that the Initial Purchasers exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Optional Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the Company, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(a) hereof.
(ii) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) A certificate, dated such Date of Delivery, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as Company, to the accuracy of same effect as the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in certificate required by Section 6(d)5(c) hereof.
(fiv) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined If requested by the Commission for purposes Representatives, letters from each of Rule 436(g)(2) under the Securities ActErnst & Young LLP, PricewaterhouseCoopers LLP and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the IndentureKPMG LLP, in form and substance reasonably satisfactory to the Initial PurchasersRepresentatives and dated such Date of Delivery, and substantially in the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in same form and substance reasonably satisfactory as the letters furnished to the Initial PurchasersRepresentatives pursuant to Section 5(e) hereof, and except that the Initial Purchasers “specified date” in the letters furnished pursuant to this paragraph shall have received be a date not more than three business days prior to such executed counterpartsDate of Delivery.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On At the Closing DateTime and at each Date of Delivery (if any), the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel counsel for the Initial Purchasers shall have received been furnished with such further certificates, documents or other information and opinions as they may have reasonably requested from require for the Company. purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and Notes Guarantor in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers.
(j) If any condition specified in this Section 6 is 5 shall not satisfied have been fulfilled when and as required to be satisfiedfulfilled, this Agreement Agreement, or, in the case of any condition to the purchase of Optional Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Initial Purchasers to purchase the relevant Optional Securities, may be terminated by the Initial Purchasers Representatives by notice to the Company at any time on at or prior to Closing Time or such Date of Delivery, as the Closing Datecase may be, which and such termination shall be without liability on the part of any party to any other party, party except as provided in Section 4 and except that Sections 5 1, 7, 8, 9, 14, 15, 16, and 7 hereof shall at all times be effective and 17 shall survive any such terminationtermination and remain in full force and effect.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion and negative assurance statement, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, the form of which is attached as Exhibit A, and (ii) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ LLP▇▇▇▇▇, internal counsel for the Company, in the form and substance satisfactory to the Initial Purchasers to the effect set forth in of which is attached as Exhibit A hereto.B.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, an independent auditors of the Companyregistered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company included in or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandumletter. References to the Offering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Offering Memorandum and the Final Memorandum (exclusive of any amendment or the Offering Memorandumsupplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorand its subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise)condition, results of operations or management of the Company or the Guarantorand its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in each such the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received a certificate, certificates dated the Closing Date and in form and substance reasonably satisfactory to the Initial Purchasers, of (i) the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and or the applicable Guarantor(s), as the case may be, have performed all covenants and agreements and satisfied all conditions on its or their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d) (in the case of the certificate from the Company’s officers only).
(f) There The Notes shall have received initial ratings by Standard & Poor’s and ▇▇▇▇▇’▇, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2Section 3(a)(62) under the Securities Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTCThe Depository Trust Company.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company in Section 1 hereof, in each case as of and the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofTrust contained herein, to the performance by the Company and the Trust of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchasers Purchaser shall have received (i) an opinion, dated discovered and disclosed to the Company and the Trust on or prior to the Closing Date, Date that the Memorandum or any amendment or supplement thereto contains any untrue statement of Winston & ▇▇▇▇▇▇ LLP, counsel for the Companya fact which, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, opinion of ▇▇▇Simp▇▇▇ ▇▇▇▇▇▇▇ & ▇art▇▇▇▇, ▇▇▇ LLP, Counsel unsel for the Initial Purchasers, with respect is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to made the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the issuance authorization, form and sale validity of this Agreement, the Notes Indenture, the Junior Subordinated Debentures, the Guarantee Agreement, the Capital Securities, the Common Securities, the Memorandum, and such all other related legal matters as relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all respects to counsel for the Initial Purchasers may reasonably requirePurchasers, and the Company and the Trust shall have furnished to such counsel such all documents as it and information that they may reasonably request for the purpose of enabling it to enable them to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Keat▇▇▇, ▇▇ething & Klek▇▇▇ ▇▇▇ll have furnished to the Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Datetheir written opinion, as counsel to the case may beCompany, in form and substance satisfactory addressed to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche LLP, independent auditors of the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received a certificate, dated the Closing Date and Date, in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters effect set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, Exhibit A hereto and to such further effect as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory counsel to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance may reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterpartsrequest.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s Issuers’ and Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company Issuers of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinionopinion and 10b-5 statement, dated the Closing Date, of Winston & ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel for the CompanyIssuers, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinionopinion and 10b-5 statement, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, the Counsel for the Initial Purchasers, Purchasers with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche UHY LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter letters shall use a “cut-off date” within three days of the date of such letter and that their procedures procedures, shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(d) On the date of this Agreement and on the Closing Date, as the case may be, each of ▇.▇. ▇▇▇▇▇, Von Gonten and Netherland ▇▇▇▇▇▇ shall have furnished to the Representative, at the request of the Issuers, reserve report confirmation letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in such letters to underwriters with respect to the reserve and other operational information contained in the Preliminary Offering Memorandum, the Offering Memorandum and the Final Offering Memorandum.
(e) (i) None of the Company Partnership nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Final Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth or incorporated by reference in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or and the Offering Memorandum, there shall not have been any material change in the capital stock or material increase in the long-term debt of the Company or the GuarantorPartnership and its subsidiaries, or any material change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholdersstockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the GuarantorPartnership and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth or incorporated by reference in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(ef) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Description of Certain Indebtedness” shall have materially changed, nor shall there have been any material change in the information with respect to the directors and officers of the Issuers from what is incorporated by reference in the Offering Memorandum, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor General Partner as to the accuracy of the representations and warranties of the Company Issuers and the Guarantors in this Agreement at and as of the Closing Date; that the Company has Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part their respective parts to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(dSections 6(e), (f) and (h).
(fh) There Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s Issuers’ other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review review, or has changed its outlook with respect to, its ratings of the Securities Notes or any of the Company’s Issuers’ other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gi) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(j) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTCDepository Trust Company.
(hk) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and a counterpart of the Guarantor Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, Issuers and the Initial Purchasers shall have received such executed counterpartsGuarantors.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(jl) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when Issuers and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationGuarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be Purchaser hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofcontained herein, to the performance by the Company of its covenants and agreements hereunder respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers Purchaser shall not have received (i) an opinion, dated discovered and disclosed to the Company on or prior to the Closing DateDate that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Winston & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇, Counsel counsel for the Initial PurchasersPurchaser, with respect is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the issuance authorization, form and sale validity of this Agreement, the Notes Indenture, the Notes, the Memorandum, and such all other related legal matters as relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel for the Initial Purchasers may reasonably requirePurchaser, and the Company shall have furnished to such counsel such all documents as it and information that they may reasonably request for the purpose of enabling it to enable them to pass upon such matters. In rendering such opinion.
(c) ▇▇▇▇, such counsel may rely as to certain matters of law upon the opinion of Winston Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP referred shall have furnished to the Initial Purchaser their written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated the Closing Date, in Section 6(a)form and substance reasonably satisfactory to the Initial Purchaser, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Initial Purchaser may reasonably request.
(cd) The Initial Purchasers You shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasersyou, from Deloitte & Touche KPMG Peat Marwick LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Offering Memorandum as identified by you.
(e) The Company shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, of the Chairman of the Board, President or a Vice President of the Company and the Treasurer or Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1 are true and correct in all material respects as of the Closing Date and the Company has complied with all its agreements contained herein; and
(ii) They have carefully examined the Memorandum and, in their opinion (A) the Memorandum; provided that , as of its date, did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the letter shall use a “cut-off date” within three days statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of such letter and that their procedures shall extend to financial information the Memorandum no event has occurred which should have been set forth in the Final Memorandum not contained in the Preliminary Memorandum. References a supplement or amendment to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letterMemorandum.
(i) None of Neither the Company nor the Guarantor, any of its subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses its business from fire, explosion, flood or properties other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) decree, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, such date there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorany of its subsidiaries or any change, or any change development involving a prospective change, in or effect on affecting the general affairs, management, financial position, stockholders' equity or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of businessand its subsidiaries taken as a whole, otherwise than as set forth or contemplated in each such Memorandum (exclusive of any amendment or supplement thereto)the Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersPurchaser, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering or the delivery of the Notes on the terms and in the manner described contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto)Memorandum.
(eg) The Initial Purchasers Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There shall not have been any decrease occurred in the rating of accorded the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”"NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION", as that term is defined by the Commission for purposes of Rule 436(g)(2) under of the Securities Act, Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of any of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company Initial Purchaser shall have received on the date hereof the Registration Rights Agreement executed by the Company.
(i) The Initial Purchaser shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchaser may reasonably require, and the Guarantor Company shall have executed furnished to such counsel such documents and delivered information as they may reasonably request for the Indenturepurpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationPurchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofcontained herein, to the performance by the Company of its covenants and agreements hereunder respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have received (i) an opinion, dated discovered and disclosed to the Company on or prior to the Closing DateDate that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Winston Weil, Gotshal & ▇▇▇▇Mang▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel l for the Initial Purchasers, with respect is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the issuance authorization, form and sale validity of this Agreement, the Notes Registration Rights Agreement, the Pledge Agreement, the Indenture, the Notes, the Warrant Agreement, the Warrants, the Memorandum and such all other related legal matters as relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all respects to counsel for the Initial Purchasers may reasonably requirePurchasers, and the Company shall have furnished to such counsel such all documents as it and information that they may reasonably request for the purpose of enabling it to enable them to pass upon such matters. In rendering such opinion.
(c) Schnader, such counsel may rely as to certain matters of law upon the opinion of Winston Harrison S▇▇▇▇ & ▇ewi▇ ▇▇▇ ▇▇▇▇▇ ▇▇ve ▇▇▇▇▇▇ LLP referred shed to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in Section 6(a)form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Initial Purchasers may reasonably request.
(cd) The Kelley, Drye & Warre▇ ▇▇▇ sh▇▇▇ hav▇ ▇▇▇nished to the Initial Purchasers its written opinion, as regulatory counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Initial Purchasers may reasonably request.
(e) You shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasersyou, from Deloitte & Touche Arthur Andersen LLP, independent auditors of the Company▇▇de▇▇▇▇▇▇▇ public accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Offering Memorandum; provided that Memorandum as identified by you.
(f) The Company shall have furnished to the letter shall use Initial Purchasers a “cut-off date” within three days certificate, dated the Closing Date, of the President or a Vice President of the Company and the Treasurer or Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of the Closing Date and the Company has complied with all its agreements contained herein;
(A) None of the Company or any of the subsidiaries of the Company has sustained, since the date of such letter and that their procedures shall extend to the latest quarterly financial information statements included in the Final Memorandum Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not contained covered by insurance, or from any labor dispute or court or governmental action, order or decree; or (B) since such date there has not been any change in the Preliminary capital stock or long-term debt of the Company or any of the subsidiaries of the Company, except as set forth in the Memorandum. References ; or (C) any Material Adverse Effect, or any development or circumstance which could reasonably be expected to result in a Material Adverse Effect; and
(iii) They have carefully examined the Offering Memorandum Documents and, in this paragraph their opinion (cA) with respect none of the Offering Documents, as of its date and as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to either letter referred state any material fact necessary to above shall include any amendment or supplement thereto at make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of such letterthe Memorandum, no event has occurred which was required under the Securities Act to have been set forth in a supplement or amendment to the Memorandum.
(i) None of the Company nor or any of the Guarantor, subsidiaries of the Company shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto)Memorandum, any loss or interference with their respective businesses its business from fire, explosion, flood or properties other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, such date there shall not have been any change in the capital stock or long-term debt of the Company or any of the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management subsidiaries of the Company or any change, or any development involving a prospective change, in or affecting the Guarantorgeneral affairs, whether management, financial position, stockholders' equity or not in results of operations of the ordinary course Company and the subsidiaries of businessthe Company taken as a whole, otherwise than as set forth or contemplated in each such Memorandum (exclusive of any amendment or supplement thereto)the Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering or the delivery of the Units, Notes and Warrants on the terms and in the manner described contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto)Memorandum.
(eh) The Initial Purchasers shall have received a certificate, dated on the Closing Date and in form and substance satisfactory to the Initial Purchasers, of Registration Rights Agreement executed by the Chief Executive Officer and the Chief Financial Officer Company.
(i) Each of the Company and the Guarantor as to Trustee shall have executed and delivered the accuracy of Notes, the representations Indenture and warranties of the Company in this Pledge Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(fj) There shall not have been any decrease in the rating Each of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor Warrant Agent shall have executed and delivered the IndentureWarrants and the Warrant Agreement on or prior to the Closing Date.
(k) The Initial Purchasers shall have received from Weil, Gotsha▇ & Manges LLP, counsel t▇ ▇▇▇ Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers Purchaser to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company Issuer and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the CompanyIssuer’s officers made pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantors of its their covenants and agreements hereunder required to be performed or satisfied at or prior to the Closing Date, and to the following additional conditions:
(a) The Initial Purchasers Purchaser shall have received (i) an opinion, dated the Closing Date, of Winston ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyIssuer and the Guarantors, in form and substance satisfactory to the Initial Purchasers Purchaser, substantially to the effect set forth in Exhibit A hereto. In rendering such opinions, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Issuer and the Guarantors and certificates or other written statements of official jurisdictions having custody of documents respecting the corporate existence or good standing of the Issuer and the Guarantors.
(b) The Initial Purchasers Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel counsel for the Initial PurchasersPurchaser, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers Purchaser may reasonably require, and the Company Issuer shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers Purchaser shall have received on each of the date hereof and on the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers Purchaser and Counsel counsel for the Initial PurchasersPurchaser, from Deloitte & Touche LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters initial purchasers with respect to the financial statements and certain financial information contained in the Offering Final Memorandum; provided that the letter shall use a “cut-off date” within three business days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(id) None of the Company nor the Guarantor, shall have sustained, since Since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Final Memorandum, there shall not have been any change in the long-term debt of the Company event or the Guarantor, or any change in or effect on or any development having condition which would have a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of businessMaterial Adverse Effect, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii)case, is, in the sole reasonable judgment of the Initial PurchasersPurchaser, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Purchaser shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial PurchasersPurchaser, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor Issuer as to the accuracy of the representations and warranties of the Company Issuer in this Agreement at and as of the Closing DateDate in all material respects (except for such representations and warranties that are qualified by materiality, which shall be accurate in all respects); that the Company has Issuer and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part required to be performed or satisfied at or prior to the Closing DateDate in all material respects (except for such covenants and conditions that are qualified by materiality, which shall have been performed and satisfied in all respects); and as to the matters set forth in Section 6(d).
(f) There The Notes shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission designated for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notestrading on PORTAL.
(g) The Notes shall be eligible for clearance and settlement through DTC, The Depository Trust Company and Clearstream Banking and the Euroclear System as indirect participants of DTCSystem, if necessary.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers Purchaser and Counsel counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationIssuer.
Appears in 1 contract
Sources: Purchase Agreement (Vycom Corp.)
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofcontained herein, to the performance by the Company of its covenants and agreements hereunder respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchasers Purchaser shall have received (i) an opinion, dated discovered and disclosed to the Company on or prior to the Closing DateDate that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Winston & ▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇, Counsel counsel for the Initial Purchasers, with respect is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the issuance authorization, form and sale validity of this Agreement, the Notes Indenture, the Notes, the Memorandum, and such all other related legal matters as relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel for the Initial Purchasers may reasonably requirePurchasers, and the Company shall have furnished to such counsel such all documents as it and information that they may reasonably request for the purpose of enabling it to enable them to pass upon such matters. In rendering such opinion.
(c) ▇▇▇▇, such counsel may rely as to certain matters of law upon the opinion of Winston Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP referred shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in Section 6(a)form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Initial Purchasers may reasonably request.
(cd) The Initial Purchasers You shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasersyou, from Deloitte & Touche KPMG LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Offering Memorandum; provided Memorandum as identified by you, including, without limitation, its written opinion to the effect that commencing with its taxable year ended December 31, 1996, the Company has been organized and operated in a manner that has enabled it to qualify as a REIT under Sections 856 through 860 of the Code, and that the letter Company's proposed method of operation will enable it to continue to so qualify.
(e) The Company shall use have furnished to the Initial Purchasers a “cut-off certificate, dated the Closing Date, of the Chairman of the Board, President or a Vice President of the Company and the Treasurer or Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1 are true and correct in all material respects as of the Closing Date and the Company has complied with all its agreements contained herein; and
(ii) They have carefully examined the Memorandum and, in their opinion (A) the Memorandum, as of its date” within three days , did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of such letter and that their procedures shall extend to financial information the Memorandum no event has occurred which should have been set forth in the Final Memorandum not contained in the Preliminary Memorandum. References a supplement or amendment to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letterMemorandum.
(i) None of Neither the Company nor the Guarantor, any of its subsidiaries shall have sustained, sustained since the date of the latest audited financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses its business from fire, explosion, flood or properties other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) decree, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, since such date there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorany of its subsidiaries or any change, or any change development involving a prospective change, in or effect on affecting the general affairs, management, financial position, stockholders' equity or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of businessand its subsidiaries taken as a whole, otherwise than as set forth or contemplated in each such Memorandum (exclusive of any amendment or supplement thereto)the Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering or the delivery of the Notes on the terms and in the manner described contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto)Memorandum.
(eg) The Initial Purchasers Subsequent to the execution and delivery of this Agreement no downgrading shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There shall not have been any decrease occurred in the rating of accorded the Notes or any of the Company’s other debt securities by any “"nationally recognized statistical rating agency”organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under of the Securities Act, Rules and Regulations and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of any of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company Initial Purchasers shall have received the Registration Rights Agreement in the form substantially identical to the Registration Rights Agreement dated August 14, 1997 executed by the Company.
(i) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Guarantor Company shall have executed furnished to such counsel such documents and delivered information as they may reasonably request for the Indenturepurpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers Purchaser to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers Purchaser shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇Mayer, Brown, R▇▇▇ & Maw LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers Purchaser, to the effect set forth in Exhibit A B hereto.
(b) The Initial Purchasers Purchaser shall have received an opinion, dated the Closing Date, of ▇C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP, Counsel for the Initial PurchasersPurchaser, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & M▇▇▇▇ ▇▇▇▇▇, R▇▇▇ & Maw LLP referred to in Section 6(a).
(c) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers Purchaser and Counsel for the Initial PurchasersPurchaser, from Deloitte & Touche LLP, independent auditors of the Company, and from PricewaterhouseCoopers LLP, independent auditors for C▇▇▇▇▇▇▇▇▇▇, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company Company, C▇▇▇▇▇▇▇▇▇▇ nor the any Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company Company, C▇▇▇▇▇▇▇▇▇▇ or the any Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company Company, C▇▇▇▇▇▇▇▇▇▇ or the any Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersPurchaser, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Purchaser shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial PurchasersPurchaser, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section Sections 6(d) and (e).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall have been designated for trading on PORTAL.
(h) The Notes shall be eligible for clearance and settlement through The Depository Trust Company (“DTC”), and Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers Purchaser and Counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time or C▇▇▇▇▇▇▇▇▇▇.
(j) The acquisition of C▇▇▇▇▇▇▇▇▇▇ shall have been consummated simultaneously on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 .
(k) The Company’s Revolving Credit Facility has been executed by all parties and 7 hereof shall at all times be effective is in full force and shall survive such terminationeffect.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ , LLP, counsel for the Company, (ii) an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Washington counsel for the Company, and (iii) an opinion, dated the Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, internal counsel for the Company, in each case in form and substance reasonably satisfactory to the Initial Purchasers to the effect set forth in Exhibit A heretoPurchasers.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gordon& ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the historical consolidated financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering each Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorand its subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantorand its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentatives, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Offering Memorandum Summary—Recent Developments” shall have changed, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received a certificate, certificates dated the Closing Date and in form and substance reasonably satisfactory to the Initial Purchasers, of (i) the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and or the applicable Guarantor(s), as the case may be, have performed all covenants and agreements and satisfied all conditions on its or their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section Sections 6(d) (in the case of the certificate from the Company’s officers only) and 6(e).
(fg) There The Notes shall have received initial ratings by Standard & Poor’s and ▇▇▇▇▇’▇, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gh) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterpartsDepository Trust Company.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, General Counsel for the Company, in form and substance satisfactory to the Initial Purchasers, to the effect set forth in Exhibit A hereto.
(ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B hereto.
(iii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & Whitney LLP, Minnesota counsel for the Guarantors listed in Part III of Schedule II hereto (the “Minnesota Guarantors”), in form and substance satisfactory to the Initial Purchasers, to the effect set forth in Exhibit C hereto.
(iv) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C., special counsel for the Company, in form and substance satisfactory to the Initial Purchasers, to the effect set forth in Exhibit D hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Shearman & Sterling LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(ci) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may besuch date, in form and substance satisfactory to the Initial Purchasers and Counsel counsel for the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the fiscal years ended December 31, 2002 and 2003 and for the quarterly period ended March 31, 2004 contained in the Offering Final Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandumletter. References to the Offering Final Memorandum in this paragraph (cc)(1) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(ii) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated such date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the quarterly periods ended June 30, 2004 and September 30, 2004 contained in the Final Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter. References to the Final Memorandum in this paragraph (c)(2) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited interim financial statements included as an annex in the Final Memorandum (exclusive of any amendment or supplement theretothereto subsequent to the date of the Final Memorandum), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Final Memorandum (exclusive of any amendment or supplement theretothereto subsequent to the date of the Final Memorandum); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Final Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorand its subsidiaries, or any change in or effect on or any development having event that would have a prospective change in or effect Material Adverse Effect on the businessCompany and its subsidiaries, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantorconsidered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement theretothereto subsequent to the date of the Final Memorandum), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Final Memorandum (exclusive of any amendment or supplement theretothereto subsequent to the date of the Final Memorandum).
(e) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer or General Counsel of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and the Guarantors, as applicable, have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There The Notes shall have received ratings of not less than ‘B’ by S&P and ‘B2’ by Moody’s, and, at or prior to the Closing Date, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, ,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review review, with possible negative implications, its ratings of the Securities Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notesrating.
(g) The Notes shall have been designated for trading on PORTAL.
(h) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterpartsDepository Trust Company.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer The Credit Agreement shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Dateentered into, the Company shall have given irrevocable notice to received the trustee proceeds from the term loan and revolving credit borrowings made thereunder as described in the Final Memorandum, all indebtedness outstanding under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated Credit Facility shall have been repaid in full and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer)Credit Facility shall have been amended and restated.
(j) Concurrently with the closing of this Offering, the total aggregate principal amount of outstanding Existing Senior Notes shall have been fully prepaid in accordance with the terms of the Master Shelf Agreement, or any waiver thereunder.
(k) Concurrently with the closing of this Offering, the total outstanding amounts and other obligations due under the Existing Credit Agreement shall have been fully prepaid in accordance the procedures therefor set out in Section 2.05 of the Existing Credit Agreement.
(l) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested request from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & K▇▇▇▇▇▇▇ & E▇▇▇▇, LLP, counsel for the Company, (ii) an opinion, dated the Closing Date, of G▇▇▇▇▇ S▇▇▇▇▇▇▇ B▇▇▇▇, Washington counsel for the Company and (iii) an opinion, dated the Closing Date, of K▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, internal counsel for the Company, in each case in form and substance reasonably satisfactory to the Initial Purchasers to the effect set forth in Exhibit A heretoPurchasers.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇C▇▇▇▇▇ ▇▇▇▇▇▇ Gordon& ▇R▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the historical consolidated financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering each Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorand its subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantorand its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Offering Memorandum Summary—Recent Developments” shall have changed, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received a certificate, certificates dated the Closing Date and in form and substance reasonably satisfactory to the Initial Purchasers, of (i) the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and or the applicable Guarantor(s), as the case may be, have performed all covenants and agreements and satisfied all conditions on its or their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section Sections 6(d) (in the case of the certificate from the Company’s officers only) and 6(e).
(fg) There The Notes shall have received initial ratings by Standard & Poor’s and M▇▇▇▇’▇, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gh) The Notes shall have been designated for trading on PORTAL.
(i) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Depository Trust Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Belden CDT Inc.)
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 2 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers of the Company and the Guarantors made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇▇ Coie LLP, counsel for the CompanyCompany and the Guarantors, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each a “comfort letter” from Ernst & Young LLP, the independent public accountant for the Company and the Guarantors, dated as of the date hereof hereof, addressed to the Initial Purchasers and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from Deloitte Ernst & Touche Young LLP, independent auditors dated as of the CompanyClosing Date, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect addressed to the financial statements Initial Purchasers and certain financial information contained in form and substance satisfactory to the Offering Memorandum; provided that Initial Pur- chasers and Counsel for the Initial Purchasers. Each letter shall use a “cut-off date” within three days of the date of such letter and that their the procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(id) None The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company nor to the Guarantoreffect that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct as if made on and as of the Closing Date; the Offering Memorandum (exclusive of any amendment or supplement after the date hereof) does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, shall have in light of the circumstances under which they were made, not misleading; and the Company and the Guarantors have, in all material respects, performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and
(ii) none of the Company, the Guarantors or any of their subsidiaries has sustained, since the date of the latest audited financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding that is material to the Company and the Guarantors, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall has not have been any material adverse change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earningsnet worth, condition (financial or otherwise), results of operations ) or management prospects of the Company or and the GuarantorGuarantors, whether or not in the ordinary course of business, otherwise than as set forth except in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case as described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in contemplated by the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Registration Rights Agreement shall have received a certificate, dated been executed and delivered by all the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d)parties thereto.
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the CompanyCompany and the Guarantors. If any condition specified in this Section 6 is not satisfied when All opinions, certificates, letters and as required documents delivered pursuant to be satisfied, this Agreement may be terminated by will comply with the provisions hereof only if they are reasonably satisfactory to the Initial Purchasers by notice and Counsel for the Initial Purchasers. The Company shall furnish to the Company at any time on or prior to Initial Purchasers such conformed copies of such opinions, certificates, letters and documents in such quantities as the Closing Date, which termination Initial Purchasers and Counsel for the Initial Purchasers shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationreasonably request.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers Purchaser to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers Purchaser shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers Purchaser, subject to customary assumptions and qualifications, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial PurchasersPurchaser, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers Purchaser and Counsel for the Initial PurchasersPurchaser, from Deloitte & Touche LLP, independent auditors of the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersPurchaser, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Purchaser shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial PurchasersPurchaser, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial PurchasersPurchaser, and the Initial Purchasers Purchaser shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers Purchaser and Counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers Purchaser by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company and each Guarantor in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s and the Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company and each Guarantor of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston each of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP counsel for the Company with respect to corporate matters in the form of Exhibit A, (ii) K&L Gates LLP, special healthcare counsel to the Company in form and substance reasonably satisfactory to the Initial Purchasers, (iii) Holland & Knight, special counsel to the Company and the Guarantors with respect to Florida law matters in form and substance reasonably satisfactory to the Initial Purchasers, (iv) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, PC, special counsel for to the Company, Company and the Guarantors with respect to California law matters in form and substance reasonably satisfactory to the Initial Purchasers, (v) ▇▇▇▇ ▇▇▇▇▇, special counsel to the Company and the Guarantors with respect to Maryland law matters in form and substance reasonably satisfactory to the Initial Purchasers, (vi) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, special counsel to the Company and the Guarantors with respect to Michigan law matters in form and substance reasonably satisfactory to the Initial Purchasers, (vii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PLLC, special counsel to the Company and the Guarantors with respect to Nevada law matters in form and substance reasonably satisfactory to the Initial Purchasers, (viii) Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., special counsel to the Company and the Guarantors with respect to North Carolina law matters in form and substance reasonably satisfactory to the Initial Purchasers and (ix) Womblye ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Rice, special counsel to the effect set forth Company and the Guarantors with respect to South Carolina law matters in Exhibit A heretoform and substance reasonably satisfactory to the Initial Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP referred shall have received and may rely upon such certificates and other documents and information as it may reasonably request to in Section 6(a)pass upon such matters.
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche LLP, independent auditors of the Companyregistered public accounting firms, respectively, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters underwriters. The comfort letter to be provided by Deloitte & Touche LLP will be issued with respect to the historical consolidated financial statements of 21st Century Oncology Holdings, Inc. and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter , and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. In such letter they shall include a “cut-off date” within five business days of the date of such letter. References to the Offering Memorandum in this paragraph (c) with respect to either the letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the any of its subsidiaries nor any other Guarantor, shall have sustained, since the date of the latest audited historical consolidated financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering each Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company and its subsidiaries or the any other Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholdersstockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company and its subsidiaries or the any other Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentatives, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds”, “Certain Relationships and Related Party Transactions” and “Business—Government Regulations” shall have changed, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance reasonably satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer an executive officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(fg) There At the time of execution of this Agreement, the Representatives shall have received from the Chief Financial Officer for U.S. Operations of the Company, a certificate dated the date hereof addressed to the Representatives, in form and substance satisfactory to the Representatives. On the Closing Date, the Representatives shall have received from the Chief Financial Officer of the Company for U.S. Operations, a certificate dated such date in form and substance satisfactory to the Representatives, to the effect that he reaffirms the statements made in the certificate furnished by him pursuant to the previous sentence of this subsection (g).
(h) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gi) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Depository Trust Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (21st Century Oncology Holdings, Inc.)
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers Purchaser to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company and the Parent Guarantor in Section 1 2 hereof, in each case as of the date hereof Execution Date and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers of the Company and the Parent Guarantor made pursuant to the provisions hereof, to the performance by the Company and the Parent Guarantor of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (i) the general counsel for the Company and the Parent Guarantor, and (ii) Torys LLP, special counsel for the Company and the Parent Guarantor, in each case in form and substance satisfactory to the Initial Purchaser, to the effect set forth in Exhibit A-1 and Exhibit A-2 hereto.
(b) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Stikeman Elliott, U.K. counsel for the Company and the Parent Guarantor, in form and substance satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B hereto.
(c) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Counsel for the Initial PurchasersPurchaser, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(cd) The Initial Purchasers Purchaser shall have received on each a “comfort letter” from KPMG LLP, the independent public accountant for the Company and the Parent Guarantor, dated as of the date hereof hereof, addressed to the Initial Purchaser and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers Purchaser and Counsel for the Initial PurchasersPurchaser. In addition, the Initial Purchaser shall have received a “bring-down comfort letter” from Deloitte & Touche KPMG LLP, independent auditors dated as of the CompanyClosing Date, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect addressed to the financial statements Initial Purchaser and certain financial information contained in form and substance satisfactory to the Offering Memorandum; provided that Initial Purchaser and Counsel for the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary MemorandumInitial Purchaser. References to the Offering Final Memorandum in this paragraph (cd) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(ie) None of The Senior Credit Facility, with terms substantially the Company nor same as those described in the GuarantorFinal Memorandum, shall have sustainedbeen executed and delivered by the parties thereto, since and the date of closing conditions to the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there initial borrowings thereunder shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto)satisfied.
(ef) The Initial Purchasers Purchaser shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial PurchasersDate, of the Chief Executive Officer and the Chief Financial Officer of each of the Company and the Parent Guarantor as to the accuracy of effect that:
(i) the representations and warranties of the Company and the Parent Guarantor in this Agreement at are true and correct as if made on and as of the Closing Date; that the Final Memorandum, as amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and the Company has and the Parent Guarantor have performed all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied at or prior to the Closing Date; and
(ii) neither the Company, the Parent Guarantor nor any of their subsidiaries has sustained any loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding that has had a Material Adverse Effect, and there has not been any material adverse change in the business, operations, properties, assets, liabilities, net worth, condition (financial or otherwise) or prospects of the Company, the Parent Guarantor and their subsidiaries, considered as to one enterprise, except in each case as described in or contemplated by the matters set forth in Section 6(dFinal Memorandum (exclusive of any amendment or supplement thereto).
(fg) There The Notes shall have received initial ratings of not less than B by Standard & Poor’s and B2 by Moody’s, and, subsequent to the Execution Date, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities ) or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On or before the Closing Date, the Company shall have given irrevocable notice furnished to the trustee under Initial Purchaser and Counsel for the Existing Notes Indenture Initial Purchaser evidence satisfactory to the Initial Purchaser that each part of the Company’s election to use any proceeds remaining from this offering after Transactions (as defined in the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following Final Memorandum) has occurred or will occur contemporaneously with the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer)Closing Date.
(ji) On or before the Closing Date, the Initial Purchasers Purchaser and Counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the CompanyCompany and the Parent Guarantor. If any condition specified in this Section 6 is not satisfied when All opinions, certificates, letters and as required documents delivered pursuant to be satisfied, this Agreement may be terminated by will comply with the provisions hereof only if they are reasonably satisfactory to the Initial Purchasers by notice Purchaser and Counsel for the Initial Purchaser. The Company shall furnish to the Company at any time on or prior to Initial Purchaser such conformed copies of such opinions, certificates, letters and documents in such quantities as the Closing Date, which termination Initial Purchaser and Counsel for the Initial Purchaser shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationreasonably request.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company in Section 1 hereof, in each case as of and the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofGuarantors contained herein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have received (i) an opinion, dated discovered and disclosed to the Company on or prior to the Closing DateDate that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Winston Simpson Thacher & ▇Bartlett, counsel for the Initial Purchasers, is mat▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory ▇▇ ▇▇▇▇▇ to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPy fact which, Counsel in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which the Company and the Initial Purchasers may agree.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonable satisfactory in all material respects to counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such all documents as it and information that they may reasonably request for the purpose of enabling it to enable them to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(cd) The Initial Purchasers shall have received on each of from Fulbright & Jaworski L.L.P. their written opinion, as counsel to the date hereof Company, addr▇▇▇▇▇ ▇▇ the Initial Purchasers and the Closing Date a letter, dated the date hereof or the Closing Date, as in form and substance reasonably satisfactory to the case may beInitial Purchasers, to the effect set forth in Exhibit B hereto.
(e) The Initial Purchasers shall have received from James C. Reed, Jr., general counsel of the Company, his written opinio▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇he Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit C hereto.
(f) At the time of execution of this Agreement, the Initial Purchasers shall have received from each of Deloitte & Touche LLP and Ernst & Young LLP, letters, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and Counsel for dated the Initial Purchasersdate hereof, from Deloitte & Touche LLP, (i) confirming that they are independent auditors public accountants with respect to the Company under Rule 101 of the CompanyAICPA'S Code of Professional Conduct, containing statements and information its interpretations and rulings, (ii) stating, as of the type ordinarily included date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in accountants’ “comfort letters” the Offering Memorandum, as of a date not more than five business days prior to underwriters the date hereof), the conclusions and findings of such firm with respect to the financial statements information, operating data and certain other matters ordinarily covered by accountants' "comfort letters" to underwriters, including the financial information contained or incorporated by reference in the Offering Memorandum as identified by you.
(g) With respect to the letters of Deloitte & Touche LLP and Ernst & Young LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Initial Purchasers letters (the "bring-down letters") of such accountants, addressed to the Initial Purchasers and dated the Closing Date, (i) confirming that they are independent public accountants with respect to the Company under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date of the bring-down letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum; provided that the letter shall use , as of a “cut-off date” within three date not more than five business days of prior to the date of the bring-down letters), the conclusions and findings of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) firm with respect to either letter referred the financial information, operating data and other matters covered by the respective initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters.
(h) The Company shall have furnished to above shall include any amendment or supplement thereto at the date Initial Purchasers a certificate, dated the Closing Date, of such letter.(i) the Senior Vice President and Chief Financial Officer of the Company and (ii) the Vice President and Treasurer of the Company stating that:
(i) None The representations, warranties and agreements of the Company in Section 1 are true and correct as of the Closing Date and the Company has complied with all its agreements contained herein;
(ii) (A) Neither the Company nor any of the Guarantor, shall have sustained, Subsidiaries has sustained since the date of the latest audited quarterly financial statements included in or incorporated by reference into the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses its business from fire, explosion, flood or properties other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) decree, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (iiB) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, such date there shall has not have been any material change in the capital stock, long-term debt or short-term debt of the Company or any of the GuarantorSubsidiaries or any material change, or any change development involving a prospective material adverse change, in or effect on or any development having a prospective change in or effect on affecting the businessgeneral affairs, operationsmanagement, propertiesfinancial position, assets, liabilities, shareholders’ stockholders' equity, earnings, condition (financial or otherwise), results of operations or management prospects of the Company or and the GuarantorSubsidiaries, whether or not in the ordinary course of businesstaken as a whole, otherwise than as set forth or contemplated in each the Offering Memorandum; and
(iii) They have carefully examined the Preliminary Offering Memorandum and the Offering Memorandum and, in their opinion (A) the Preliminary Offering Memorandum and the Offering Memorandum, as of their respective dates did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum.
(i) (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in or incorporated by reference into the Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum and (ii) since such Memorandum (exclusive date there shall not have been any material change in the capital stock, long-term debt or short-term debt of the Company or any amendment of its Subsidiaries or supplement thereto)any material change, or any development involving a prospective material change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity or results of operations of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering or the delivery of the Notes on the terms and in the manner described contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto)Memorandum.
(ej) The Initial Purchasers Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have received a certificate, dated occurred in the Closing Date and in form and substance satisfactory to rating accorded the Initial Purchasers, of Company or any Guarantor or the Chief Executive Officer and the Chief Financial Officer securities of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities Guarantor by any “"nationally recognized statistical rating agency”, organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under of the Securities Act, Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gk) The Notes shall be eligible for clearance and settlement through DTCCompany, Clearstream Banking the Guarantors and the Euroclear System as indirect participants of DTCTrustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts thereof.
(hl) The Company Company, the Guarantors and the Guarantor Initial Purchasers shall have executed entered into the Registration Rights Agreement and delivered the IndentureInitial Purchasers shall have received counterparts thereof.
(m) The Initial Purchasers shall have received from Simpson Thacher & Bartlett, counsel for the Initial Purchasers, their ▇▇▇▇▇▇▇, ▇▇▇▇▇ the ▇▇▇▇▇▇▇ Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationPurchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes Securities shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 2 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers of the Company and the Guarantors made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇▇ Coie LLP, counsel for the CompanyCompany and the Guarantors, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes Securities and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each a “comfort letter” from Ernst & Young LLP, the independent public accountant for the Company and the Guarantors, dated as of the date hereof hereof, addressed to the Initial Purchasers and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from Deloitte Ernst & Touche Young LLP, independent auditors dated as of the CompanyClosing Date, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect addressed to the financial statements Initial Purchasers and certain financial information contained in form and substance satisfactory to the Offering Memorandum; provided that Initial Purchasers and Counsel for the Initial Purchasers. Each letter shall use a “cut-off date” within three business days of the date of such letter and that their the procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(id) None The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company nor to the Guarantoreffect that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct as if made on and as of the Closing Date; the Offering Memorandum (exclusive of any amendment or supplement after the date hereof) does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, shall have in light of the circumstances under which they were made, not misleading; and the Company and the Guarantors have, in all material respects, performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and
(ii) none of the Company, the Guarantors or any of their subsidiaries has sustained, since the date of the latest audited financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court any legal or governmental actionproceeding that is material to the Company and the Guarantors, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall has not have been any material adverse change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earningsnet worth, condition (financial or otherwise), results of operations ) or management prospects of the Company or and the GuarantorGuarantors, whether or not in the ordinary course of business, otherwise than as set forth except in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case as described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in contemplated by the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Registration Rights Agreement shall have received a certificate, dated been executed and delivered by all the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d)parties thereto.
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the CompanyCompany and the Guarantors. If any condition specified in this Section 6 is not satisfied when All opinions, certificates, letters and as required documents delivered pursuant to be satisfied, this Agreement may be terminated by will comply with the provisions hereof only if they are reasonably satisfactory to the Initial Purchasers by notice and Counsel for the Initial Purchasers. The Company shall furnish to the Company at any time on or prior to Initial Purchasers such conformed copies of such opinions, certificates, letters and documents in such quantities as the Closing Date, which termination Initial Purchasers and Counsel for the Initial Purchasers shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationreasonably request.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company Issuers of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇ Dechert LLP, counsel for the CompanyIssuers, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received opinions, dated the Closing Date, of counsel for the Issuers and Guarantors in each jurisdiction set forth on Schedule IV hereto, in form and substance satisfactory to the Initial Purchasers.
(c) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial PurchasersPurchasers and (ii) an opinion, dated the Closing Date of Goodmans LLP, in each case, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(cd) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures procedures, shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (cd) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company Parent nor the Guarantor, any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Final Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties arising from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute strike or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or and the Offering Memorandum, there shall not have been any change in the long-term debt of Parent and its subsidiaries (except as described in the Company Preliminary Offering Memorandum and the Offering Memorandum (exclusive of any amendment or the Guarantorsupplement thereto)), or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the GuarantorParent and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(ef) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor Parent as to the accuracy of the representations and warranties of the Company Issuers and the Guarantors in this Agreement at and as of the Closing Date; that the Company has Issuers and the Guarantors shall have performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(dSections 6(e), (g) and (h).
(fg) There Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s Issuers’ other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities Notes or any of the Company’s Issuers’ other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gh) Subsequent to the date hereof, there shall not have been any decrease in the rating of Parent or any of its subsidiaries by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of Parent or any of its subsidiaries or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of Parent or any of the subsidiaries.
(i) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTCDepository Trust Company.
(hj) The Company Except as otherwise provided for in the Security Agreement, the Indenture or the other documents entered into pursuant to the Transactions, the Initial Purchasers shall have received the Security Agreement and the Intercreditor Agreement and all other certificates, agreements or instruments necessary to perfect the Collateral Agent’s security interest in all of the Collateral, including but not limited to, any applicable control agreements, stock certificates accompanied by instruments of transfer and stock powers undated and endorsed in blank, Uniform Commercial Code and Personal Property Security Act financing statements in appropriate form for filing and filings with the United States Patent and Trademark Office and the Canadian Intellectual Property Office in appropriate form for filing; each such document executed by the Issuers and/or each other party thereto, and each such document shall be in full force and effect and evidence that all of the liens on the Collateral other than Permitted Liens have been released. The Initial Purchasers shall also have received (i) certified copies of Uniform Commercial Code, Personal Property Security Act, United States Patent and Trademark Office, Canadian Intellectual Property Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches, each of a recent date, listing all effective financing statements, lien notices or comparable documents that name the Issuers or any Guarantor as debtor and that are filed in those state jurisdictions in which the Issuers or any Guarantor is organized and such other searches that are required by Schedule III hereto or that the Initial Purchasers reasonably deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Liens) and (ii) acceptable evidence of payment or arrangements for payment by the Issuers and the Guarantors of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents.
(k) At the Closing Date, the Initial Purchasers shall have executed received policies or certificates of insurance covering the property and delivered assets of the IndentureIssuers and the Guarantors, which policies or certificates shall be in form and substance reasonably acceptable to the Initial Purchasers and reflect the Collateral Agent for its benefit and the benefit of the Collateral Agent and the holders of the Notes, as additional insured and loss payee and shall otherwise bear endorsements of the character reasonably acceptable to the Initial Purchasers.
(l) At the Closing Date, the Credit Agreement Amendments shall have been entered into by the parties thereto in form and substance reasonably satisfactory to the Initial Purchasers, and the ABL Credit Agreement and the Term Loan Credit Agreement, each as amended, shall be in full force and effect.
(m) The Initial Purchasers shall have received executed copies thereof. The Company and a counterpart of the Guarantor Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, Issuers and the Initial Purchasers shall have received such executed counterpartsGuarantors.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(jn) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when Issuers and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationGuarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company in Section 1 hereof, in each case as of and the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofTrust contained herein, to the performance by the Company and the Trust of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchasers Purchaser shall have received (i) an opinion, dated discovered and disclosed to the Company and the Trust on or prior to the Closing Date, Date that the Memorandum or any amendment or supplement thereto contains any untrue statement of Winston & ▇▇▇▇▇▇ LLP, counsel for the Companya fact which, in form and substance satisfactory to the Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, opinion of ▇▇▇Simp▇▇▇ ▇▇▇▇▇▇▇ & ▇art▇▇▇▇, ▇▇▇ LLP, Counsel unsel for the Initial Purchasers, with respect is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to made the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the issuance authorization, form and sale validity of this Agreement, the Notes Indenture, the Junior Subordinated Debentures, the Guarantee Agreement, the Capital Securities, the Common Securities, the Memorandum, and such all other related legal matters as relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all respects to counsel for the Initial Purchasers may reasonably requirePurchasers, and the Company and the Trust shall have furnished to such counsel such all documents as it and information that they may reasonably request for the purpose of enabling it to enable them to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Ray, Quin▇▇▇ & ▇ebe▇▇▇ ▇▇▇ll have furnished to the Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Datetheir written opinion, as counsel to the case may beCompany, in form and substance satisfactory addressed to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche LLP, independent auditors of the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received a certificate, dated the Closing Date and Date, in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company in this Agreement at and as of the Closing Date; that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and as to the matters effect set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, Exhibit A hereto and to such further effect as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory counsel to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereofmay reasonably request. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.15 14
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion and negative assurance statement, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, the form of which is attached as Exhibit A, and (ii) an opinion, dated the Closing Date, of Winston & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ LLP▇▇▇▇▇, internal counsel for the Company, in the form and substance satisfactory to the Initial Purchasers to the effect set forth in of which is attached as Exhibit A hereto.B.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, an independent auditors of the Companyregistered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company and PPC included in or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off date” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandumletter. References to the Offering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(i) None of the Company nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Offering Memorandum or and the Offering Final Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company or the Guarantorand its subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise)condition, results of operations or management of the Company or the Guarantorand its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in each such the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received a certificate, certificates dated the Closing Date and in form and substance reasonably satisfactory to the Initial Purchasers, of (i) the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company has and or the applicable Guarantor(s), as the case may be, have performed all covenants and agreements and satisfied all conditions on its or their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d6(e) (in the case of the certificate from the Company’s officers only).
(f) There The Notes shall have received initial ratings by Standard & Poor’s and Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2Section 3(a)(62) under the Securities Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTCthe Common Depositary, Clearstream Banking Euroclear and the Euroclear System as indirect participants of DTCClearstream.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Sources: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s Issuers’ and Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company Issuers of its their covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinionopinion and 10b-5 statement, dated the Closing Date, of Winston & ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel for the CompanyIssuers, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinionopinion and 10b-5 statement, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, the Counsel for the Initial Purchasers, Purchasers with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & ▇▇▇▇▇▇ LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from Deloitte & Touche each of UHY LLP and BDO USA, LLP, independent auditors of the Companypublic accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum; provided that the letter letters shall use a “cut-off date” within three days of the date of such letter and that their procedures procedures, shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(d) On the date of this Agreement and on the Closing Date, ▇▇▇▇▇ ▇▇▇▇▇ shall have furnished to the Representative, at the request of the Issuers, reserve report confirmation letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in such letters to underwriters with respect to the reserve and other operational information contained in the Preliminary Offering Memorandum, the Offering Memorandum and the Final Offering Memorandum.
(i) None of the Company Partnership nor the Guarantorany of its subsidiaries, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Final Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth or incorporated by reference in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or and the Offering Memorandum, there shall not have been any material change in the capital stock or material increase in the long-term debt of the Company or the GuarantorPartnership and its subsidiaries, or any material change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholdersstockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the GuarantorPartnership and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth or incorporated by reference in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial PurchasersRepresentative, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(ef) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Description of Certain Indebtedness” shall have materially changed, nor shall there have been any material change in the information with respect to the directors and officers of the Issuers from what is set forth in the section of the Offering Memorandum entitled “Management,” if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor General Partner as to the accuracy of the representations and warranties of the Company Issuers and the Guarantors in this Agreement at and as of the Closing Date; that the Company has Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part their respective parts to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(dSections 6(e), (f) and (i).
(fh) There Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s Issuers’ other debt securities by any “nationally recognized statistical rating agency”, ,” as that term is defined by the Commission for purposes of Rule 436(g)(2in Section 3(a)(62) under the Securities Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review review, or has changed its outlook with respect to, its ratings of the Securities Notes or any of the Company’s Issuers’ other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(gi) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(j) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTCDepository Trust Company.
(hk) The Company and the Guarantor shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The Company and a counterpart of the Guarantor Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers, Issuers and the Initial Purchasers shall have received such executed counterpartsGuarantors.
(i) All of the conditions to closing set forth in the documents relating to the Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(jl) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when Issuers and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such terminationGuarantors.
Appears in 1 contract