Conditions to the Obligations of the Initial Purchasers Sample Clauses: 200 Samples

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 2 contracts

Sources: Purchase Agreement (Commonwealth Edison Co), Purchase Agreement (Commonwealth Edison Co)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution ~~Time~~ Time"), and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the opinion of Morr▇▇▇▇ & ▇oer▇▇▇▇ ▇▇▇, counsel to the Company, dated as of the Closing Date, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, to the effect that: (1) The Company has been duly incorporated and is validly existing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Final Memorandum and to enter into and perform its obligations under this Agreement and each of the other Transaction Documents; (2) The authorized, issued and outstanding capital stock of the Company is as set forth in the Final Memorandum under the caption "Description of Capital Stock"; (3) Each of the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Memorandum; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and non-assessable and, to such counsel's knowledge and information, except as set forth in the Final Memorandum under the caption "Business -- The Verio Organization", is owned by the Company directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; (4) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Securities, the Exchange Notes, the Private Exchange Notes, the Indenture and the Registration ~~Rights~~ Agreement; and each of this Agreement, the Securities, the Exchange Notes, the Private Exchange Notes, the Indenture and the Registration Agreement has been duly authorized by the Company; (5) No consent, waiver, approval, authorization, license, qualification or order of or filing or registration with any court or governmental or regulatory agency or body is required for the execution and delivery by the Company of this Agreement, the Indenture or the Registration Agreement or for the issue and sale of the Securities, the Exchange Notes or the Private Exchange Notes, if any, or the performance by the Company of its obligations under the Transaction Documents, or for the consummation of any of the transactions contemplated hereby or thereby, except such as may be required (A) in connection with the registration under the Securities Act of the Exchange Notes or the Private Exchange Notes, if any, under the Registration Agreement, (B) in order to qualify the Indenture under the Trust Indenture Act and (C) by state securities or "blue sky" laws in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion); (6) The issuance, sale and delivery of the Securities, the Exchange Notes and the Private Exchange Notes, if any, the execution, delivery and performance by the Company of this Agreement, the Indenture and the Registration Agreement (in each case assuming due authorization and execution by each party other than the Company), and the consummation by the Company of the transactions contemplated hereby and thereby and the compliance by the Company with the terms of the foregoing do not, and, at the Closing Date, will not, conflict with or constitute or result in a breach or violation by the Company or any of the Subsidiaries of (A) any provision of the Certificate of Incorporation or By-laws of the Company, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Company, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under any Material Contract identified in Schedule III hereto (provided that such counsel need not express an opinion as to any potential violation of any financial covenant contained in any Material Contract) or (C) any law, statute, rule, or regulation or any order, decree or judgment known to such counsel to be applicable to the Company or any Subsidiary, of any court or governmental or regulatory agency or body or arbitrator known to such counsel to have jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or assets; (7) The Purchase Agreement has been duly authorized, executed and delivered by the Company; (8) The statements in the Offering Memorandum under the headings "Offering Memorandum Summary - The Offering," "Description of Capital Stock," "Description of the 1997 Notes," "Description of the March 1998 Notes," "Description of the Notes," "Exchange Offer; Registration Rights" and "Certain Transactions," insofar as such statements purport to summarize certain provisions of the Securities, the Exchange Notes, the Indenture, the Registration Agreement, the Company's authorized and outstanding capital stock, the Company's 13-1/2% Senior Notes due 2004 and the Company's 10-3/8% Senior Notes Due 2005, provide a fair summary of such provisions of such agreements and instruments; (9) The statements in the Offering Memorandum under the caption "Certain Federal Income Tax Considerations" fairly and accurately summarize the material United States federal tax consequences of owning the Securities; (10) Each of the Indenture and the Registration Agreement has been duly authorized, executed and delivered by the Company and (assuming due authorization and execution by each party thereto other than the Company) constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such ~~agreement shall~~ enforceability may be limited by (a) with respect to the Indenture and the Registration Agreement, the Enforceability Limitations, including the waiver contained in ~~full force~~ Section 5.15 of the Indenture, and ~~effect according~~ (b) with respect to the Registration Agreement, as to rights of indemnification and contribution, principles of public policy or federal or state securities laws relating thereto; (11) Each of the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Notes and the Private Exchange Notes, if any, when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations; (12) To the knowledge of such counsel, other than as described in the Final Memorandum, no legal, regulatory or governmental proceedings are pending to which the Company is a party or to which the property or assets of the Company are subject which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or which, individually or in the aggregate, could have a material adverse effect on the power or ability of the Company to perform its obligations under the Transaction Documents or to consummate the transactions contemplated thereby or by the Offering Memorandum and to the knowledge of such counsel, no such material proceedings have been threatened against the Company or with respect to any of its respective assets or properties; (13) Assuming (a) the accuracy of, and compliance with, the representations, warranties and covenants of the Company in subsections 1(c) and 1(d) of the Purchase Agreement, (b) the accuracy of, and compliance with, the representations, warranties and covenants of the Initial Purchasers in Section 4 of the Purchase Agreement, (c) the compliance by the Initial Purchasers with the offering and transfer procedures and restrictions described in the Final Memorandum and (d) receipt by the purchasers to whom the Initial Purchasers initially resell the Securities of a copy of the Final Memorandum prior to such sale, it is not necessary in connection with the offer, sale and delivery of the Securities or in connection with the initial resale of such Securities in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act, it being understood that no opinion is expressed as to any subsequent resale of any Securities; (14) When the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of the Company which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system; and (15) Neither the consummation of the transactions contemplated hereby nor the sale, issuance, execution or delivery of the Securities will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. In addition, such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Company and representatives of the independent certified accountants of the Company, at ~~all times from~~ which conferences the contents of the Preliminary Memorandum and ~~after~~ Final Memorandum and the business and affairs of the Company and the Subsidiaries were discussed, and although such counsel has not independently verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except and only to the extent set forth in subclauses (8) and (9) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deemed appropriate upon the representations and opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Final Memorandum at the date thereof or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial or statistical data set forth or referred to in the Final Memorandum). In rendering such opinions, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal law of the United States, the General Corporation Law of the State of Delaware and the laws of the State of New York and (B) may rely, as to matters of fact, to the extent they deem proper on representations or certificates of responsible officers of the Company and certificates of public officials. References to the Final Memorandum in this subsection (a)(i) include any supplements thereto at or prior to the Closing Date. (hii) ~~Prior to~~ At the Closing Date, the ~~Company~~ Initial Purchasers shall have ~~furnished to~~ received the ~~Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any~~ opinion of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇Carl▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇~~▇ ▇▇▇▇▇~~▇, ▇▇~~▇▇▇ ▇▇▇▇~~q., ~~▇▇▇▇▇▇▇~~General Counsel to the Company, ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~dated as of the Closing Date, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, to the effect that: (1) To the knowledge of such counsel, other than as described in the Final Memorandum, no legal, regulatory or governmental proceedings are pending to which any of the Subsidiaries is a party or to which the property or assets of the Subsidiaries are subject which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or which, individually or in the aggregate, could have a material adverse effect on the power or ability of the Company to perform its obligations under the Transaction Documents or to consummate the transactions contemplated thereby or by the Final Memorandum and to the knowledge of such counsel, no such material proceedings have been threatened against the Subsidiaries or with respect to any of their respective assets or properties; (2) To the best knowledge of such counsel, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; (3) To the best knowledge of such counsel, each of the Subsidiaries is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing individually or in the aggregate would not result in a Material Adverse Effect; and (2) None of the Company or the Subsidiaries is in violation of its respective Organizational Documents; to the knowledge of such counsel, no default by the Company or any of the Subsidiaries exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Material Contract which could reasonably be expected to have a Material Adverse Effect; and to the knowledge of such counsel, none of the Company nor the Subsidiaries is in breach or violation of any law, statute, rule or regulation, or any judgment, decree or order of any governmental or regulatory agency or other body having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or assets such that any such breach or violation could reasonably be expected to have a Material Adverse Effect. In addition, such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Company and representatives of the independent certified accountants of the Company, at which conferences the contents of the Preliminary Memorandum and Final Memorandum and the business and affairs of the Company and the Subsidiaries were discussed, and although such counsel has not independently verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum, on the basis of the foregoing (relying as to materiality to the extent such counsel deemed appropriate upon the representations and opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Final Memorandum at the date thereof or as of the Closing Date., contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial or statistical d

Appears in 1 contract

Sources: Purchase Agreement (Verio Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~Subsequent to the Execution Time and prior to the Closing Date, ~~counsel~~ there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the ~~Company~~direction of the possible change, in the rating accorded the Company or any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act. (b) There shall not have been any Material Adverse Change since the date of the Disclosure Package, that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market or deliver the Securities on the terms and in the manner contemplated in the Disclosure Package; and the Representatives shall have ~~furnished to~~ received, on the ~~Representatives its opinion~~Closing Date, a certificate, dated the Closing Date and ~~addressed to~~ signed by either the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion chief executive officer or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate chief financial officer of the Company, ~~signed by the Treasurer of the Company, dated the Closing Date,~~ to the ~~effect~~ foregoing effect. Such certificate will also provide that ~~the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i)~~ the representations and warranties of the Company ~~in this Agreement~~ contained herein are true and correct ~~in all material respects on and~~ as of the Closing Date ~~with the same effect as if made on the Closing Date,~~ and that the Company has complied with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and (ii) since~~ . The officer making such certificate may rely upon the ~~date~~ best of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken his knowledge as ~~a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)~~to proceedings threatened. (dc) ~~At the Execution Time and at the Closing Date, the~~ The Company shall have requested and caused ~~PricewaterhouseCoopers LLP~~ ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary for the Company (or any other lawyer of the Company reasonably satisfactory to the Representatives), to furnish to the Representatives ~~letters~~his opinion, dated ~~respectively as of the Execution Time and as of~~ the Closing ~~Date, in form~~ Date and ~~substance satisfactory~~ addressed to the Representatives~~. (e) Subsequent~~ , to the ~~Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been~~ effect that: (i) ~~any change~~ the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or ~~decrease specified in~~ its ownership or leasing of property requires such qualification (except where the ~~letter or letters referred~~ failure to ~~in paragraph (d) of this Section 6; or~~ so qualify would not have a Material Adverse Effect); (ii) ~~any change, or any development involving a prospective change, in or affecting~~ all of the ~~financial condition, business or properties~~ issued shares of capital stock of the Company have been duly and ~~its subsidiaries~~validly authorized and issued, ~~taken~~ are fully paid and non-assessable, and (except as ~~a whole, whether or not arising from transactions~~ otherwise set forth in the ~~ordinary course~~ Disclosure Package and the Final Memorandum) are owned directly by the Company’s parent, Westar Energy, Inc. (“Westar”), free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of Westar or the Company, provided that such counsel shall state that he believes that both the Initial Purchasers and he are justified in relying upon such opinions and certificates); (iii) the Mortgage has been duly authorized, executed and delivered by the Company; (iv) assuming the due authorization, execution and delivery by the other parties thereto, the Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability; (v) the Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Mortgage have been duly paid; (vi) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Mortgage as owned by it and subject to the lien of the Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Mortgage; subject to the qualifications set forth in this Section 6(a)(vi), the Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Disclosure Package and the Final Memorandum; and the descriptions of all such properties and assets contained in the granting clauses of the Mortgage are correct and adequate for the purposes of the Mortgage; (vii) the Securities have been duly authorized, executed, and delivered by the Company; (viii) when the Securities have been duly executed and authenticated in accordance with the provisions of the Mortgage, the Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Mortgage and to the lien of the Mortgage; (ix) this Agreement has been duly authorized, executed and delivered by the Company; (x) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Mortgage and the Securities will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Mortgage or the Securities, provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, the Mortgage or the Securities, provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws; (xi) the Company possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect, and the Company has not received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum; (xii) the statements under the caption “Description of the Bonds” in the Preliminary Memorandum and the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (~~exclusive~~ xiii) there is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property that is not adequately disclosed in the Disclosure Package and the Final Memorandum, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not singly or in the aggregate, have a Material Adverse Effect; (xiv) the Company has complied with K.S.A. §66-125 with respect to the issuance of the Securities. No additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge such counsel, any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as may be required under the Blue Sky laws of any ~~amendment~~ jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers in the manner contemplated herein and in the Disclosure Package and the Final Memorandum. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the Disclosure Package (except for the financial statements and other financial or ~~supplement thereto)~~ statistical data derived therefrom that are included therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at the ~~effect~~ Execution Time or as amended or supplemented, if applicable, as of ~~which~~the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in ~~any case referred~~ order to ~~in clause (i) or (ii) above, is~~make the statements therein, in the ~~sole judgment~~ light of the ~~Representatives~~circumstances under which they were made, ~~so material and adverse as to make it impractical~~ not misleading; or ~~inadvisable to market the Securities as contemplated by~~ (2) that the Final Memorandum (~~exclusive~~ except for the financial statements and other financial or statistical data derived therefrom that are included therein or omitted therefrom, as to which such counsel is not called upon to express any belief), as of ~~any amendment~~ its date or ~~supplement thereto). (f) On~~ as amended or supplemented, if applicable, at the Closing Date, ~~(i)~~ contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the ~~Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service~~statements therein, ~~Inc. and "A-" by Standard & Poor's Rating Services~~in the light of the circumstances under which they were made, not misleading. With respect to the preceding paragraph, such counsel may state that he has not been called upon to pass upon, and that he expresses no view regarding, the ~~Company shall have delivered~~ financial statements or financial schedules or statistical data derived therefrom or other accounting or financial data included in the Disclosure Package and the Final Memorandum, and that his opinion and belief is based upon his participation in the preparation of the Disclosure Package and the Final Memorandum (as amended or supplemented) and review and discussion of the contents thereof, but is without independent check or verification except as specified. In expressing his opinion as to questions of the law of jurisdictions other than the State of Kansas and the United States, such counsel may rely to the ~~Representatives evidence satisfactory~~ extent reasonable on such counsel as may be reasonably acceptable to counsel to the ~~Representatives confirming that the Securities have~~ Initial Purchasers. In addition, such ~~ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned~~ counsel may reasonably rely as to ~~the Securities or any~~ questions of fact on certificates of responsible officers of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (gd) ~~On the Closing Date, the Initial Purchasers~~ The Representatives shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, on the Closing Date ~~by the Representatives. Notice~~ an opinion of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇~~▇▇▇▇ ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~LLP, ~~▇▇▇▇▇ ▇▇▇▇~~special counsel for the Company, ~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on~~ dated the Closing Date., to the effect that: (i) it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under this Agreement or in connection with the initial resale of such Securities by the Initial Purchasers in the manner contemplated by this Agreement and the Final Memorandum to register the Securities under the Act, or to qualify the Mortgage under the Trust Indenture Act, it being understood that no opinion is expressed as to any subsequent offer or resale of any Security; (ii) the Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Memorandum will not be, required to register as an “investment company” as such term is defined in the Investment Company Act; (iii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Mortgage and the Securities, will not contravene any provision of the laws of the State of New York or any federal law of the United States of America (except with respect to laws relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, the Mortgage and the Securities, provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws; (iv) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, the Mortgage and the Securities, is required for the execution, delivery and performance by the Company of its respective obligations under this Agreement, the Mortgage and the Securities, except such as may be required under federal or state securities or Blue Sky laws as to which such counsel need not express any opinion; and (v) the statements included in the Final Memorandum under the caption “Certain U.S. Federal Income Tax Consequences,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, fairly and accurately summarize the matters referred to therein in all material respects. In addition, such coun

Appears in 1 contract

Sources: Purchase Agreement (Westar Energy Inc /Ks)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing Date (as though made on such Closing Date) and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, ~~in form and substance satisfactory~~ to ~~each~~ the effect of the ~~Representatives and its counsel~~substantive paragraphs set forth on Annex B hereto. (b) The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) [Reserved]. (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused each of BDO USA, LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representatives. (f) On the date hereof, the Representatives shall have received a written certificate executed by the Chief Financial Officer of the Company, the form of which is attached as Schedule III hereto. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fh) On Subsequent to the Execution Time and prior to the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a ~~downgrading~~ possible change that does not indicate the direction of the possible change, in the rating ~~assigned to~~ accorded any of the ~~Securities~~ debt securities of the Company or any of ~~the Company's first mortgage bonds or commercial paper~~ its subsidiaries by any "“nationally recognized statistical rating ~~agency",~~ organization,” as ~~that~~ such term is defined ~~by the Commission for purposes of Rule 436(g)(2~~in Section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the ~~Securities or any of the Company's other debt securities~~Exchange Act. (gi) ~~On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement~~ The Securities shall be ~~in full force~~ eligible for clearance and ~~effect according to its terms at all times from and after the Closing Date~~settlement through The Depository Trust Company. (hj) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the executive officers and directors of the Company set forth on Annex A and addressed to the Initial Purchasers. (k) The Company shall have caused the Maximum Number of Shares to be approved for listing, subject to issuance, on Nasdaq. (l) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇~~▇▇▇ ▇~~▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Nuance Communications, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Company shall have requested and caused (i) Sidley Austin LLP, counsel for the Company, to furnish to the Representative its opinion and negative assurance letter, each dated the Closing Date and addressed to the Representative, substantially in the form of Exhibit A-1 hereto and (ii) ▇~~▇▇▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, tax counsel for the Company, to furnish to the Representative its opinion, dated as of the Closing Date and addressed to the Representative, substantially in the form of Exhibit A-2 hereto. (b) The Company shall have ~~furnished~~ requested and caused the general counsel of the Company to furnish the ~~Representatives its~~ Representative an opinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, substantially in the form ~~and substance satisfactory to each~~ of ~~the Representatives and its counsel~~Exhibit B hereto. (bc) The ~~Representatives~~ Representative shall have received from ~~Winston~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage, the Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by (x) the ~~Treasurer~~ chief executive officer of the Company and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company ~~has~~ have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial conditionprospects, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (e) At the Execution Time and at the Closing Date, (i) the Company shall have requested and caused Deloitte & Touche LLP to furnish to the Representative customary comfort letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and (ii) the Company shall have furnished to the Representative a certificate of its chief financial officer, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative and providing “management comfort” with respect to certain financial information contained in the Disclosure Package and the Final Memorandum. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s 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~~3(a)(62) under the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (ij) The Company shall have filed with the Secretary of State for the State of Delaware the Certificate of Designation, and the same shall have been declared effective. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇~~▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Vistra Corp.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused Robert R. Winter, Vice President, Legal Services, of the Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇~~▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its~~ he Representative his opinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, to the effect set forth in ~~form and substance satisfactory to each of the Representatives and its counsel~~Exhibit A hereto. (b) The ~~Representatives~~ Company shall have ~~received from Winston~~ requested and caused Sullivan & Cromwell, counsel for the Company, to furnish to the R▇▇▇▇▇▇~~, counsel for the Initial Purchasers, such opinion or opinions~~▇▇ati▇▇ ▇▇▇ ▇pinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, to the effect set forth in Exhibit B hereto. (c) The Representative shall have received from Simpson Thacher & Bartlett, counsel for the Initial Purchasers, s▇▇▇ ▇▇▇▇▇▇▇, ▇▇ted the ▇▇▇sing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Representative a certificate ~~of the Company,~~ signed by the ~~Treasurer~~ President or any Vice-President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect ~~that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and~~ that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date~~, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and (ii) since the date of the most recent financial statements included in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated by the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum. (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the ~~Representatives letters~~Representative a letter, dated ~~respectively~~ as of the Execution Time and ~~as of~~ the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, to the effect set forth in Exhibit C hereto. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final ~~Memorandum~~ Memorandum, (exclusive of any amendment or supplement thereto), there shall not have been ~~(i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii)~~ any change, or any development involving a prospective ~~change,~~ change in ~~or affecting~~ the ~~financial~~ condition, financial or otherwise, or in the earnings, business affairs or ~~properties~~ business prospects of the ~~Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business~~Company, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On The Securities shall be eligible for clearance and settlement through The Depository Trust Company. (h) Subsequent to the Execution Time and prior to the Closing Date, ~~(i)~~ there shall not have been any downgrading in the ~~Securities shall be rated "A3"~~ rating of any of the Company's debt securities by Moody's Investors Service, Inc. or by Standard & Poor's Ratings S▇▇▇▇▇'▇▇ ~~Investors Service, Inc.~~ and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have~~ neither such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the ~~Securities or any of the~~ Company's ~~other~~ debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by ~~the Representatives. Notice of such cancellation shall be given~~ notice to the Company by the Representative in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~125 Broad Street, ~~▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~New York, ~~▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~New York 10004, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Allegheny Energy Supply Co LLC)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company and the Guarantors contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇~~▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form ~~and substance satisfactory to each of the Representatives and its counsel~~set forth in Exhibit B hereto. (b) The Representatives shall have received ~~from Winston &~~ an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Company, substantially in the form set forth in Exhibit C hereto. (c) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, in each case acting in such capacity, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Company and the Guarantors, in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the Company and the Guarantors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) to the best of his/her knowledge after reasonable investigation, since the date of the most recent financial statements included [or incorporated by reference] in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), earnings or business ~~or properties~~ of the Company and its ~~subsidiaries~~Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ KPMG LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representatives and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form set forth in Exhibit D hereto. (ef) Subsequent to the Execution ~~Time or~~Time, or if earlier, the dates as of which information is given in the Disclosure Package, (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have ~~been~~ occurred (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; 6 or ~~(ii)~~ any change, or any development or event involving a prospective change, in the condition (financial or ~~affecting the financial condition~~other), ~~business~~ business, properties or ~~properties~~ results of operations of the Company and its ~~subsidiaries,~~ subsidiaries taken as ~~a whole~~one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in ~~or contemplated in~~ the ~~Final Memorandum~~ Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in ~~any case referred to in clause (i) or (ii) above, is, in~~ the sole judgment of the Representatives, is so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating). (fg) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. (h) On the Closing Date, (i) the ~~Securities~~ Company, the Trustee and the Escrow Agent shall ~~be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services~~have executed the Escrow Agreement, and the ~~Company shall have delivered to the~~ Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received ~~the Registration Rights Agreement duly~~ copies thereof, executed ~~and delivered~~ by the ~~Company~~ Company, the Trustee and the Escrow Agent and such agreement shall be in full force and effect ~~according to its terms at all times from~~ on and ~~after~~ as of the Closing Date; (ii) the Company shall have deposited the Escrow Property equal to the Escrow Redemption Amount with the Escrow Agent solely in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property pursuant to the Escrow Agreement. (hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not ~~be in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇~~Shearman & Sterling, Attention: ▇▇▇▇▇ ▇▇▇▇~~▇ &~~ ▇▇▇▇▇, ▇▇▇ ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused each of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, DLA Piper LLP (US) and Blakes, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the ~~Representatives~~Representatives substantially in the form set forth in Annex B, Annex C, Annex D and Annex E herein: In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the jurisdiction of incorporation of the Company, the State of New York or the federal laws of the United States, to the extent they deem proper and specified in ~~form~~ such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and ~~substance~~ who are satisfactory to ~~each~~ counsel for the Initial Purchasers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the ~~Representatives~~ Company and ~~its counsel. (b)~~ public officials. The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion ~~or opinions~~and negative assurance letter, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cb) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect ~~that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and~~ that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date in all material respects with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (c) At the Execution Time and at the Closing Date, the Company shall have requested and caused Deloitte & Touche LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in substantially the form previously delivered to the Representatives, which is in form and substance satisfactory to the Representatives. (d) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (c) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fe) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (f) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned~~ accorded to the Securities or any of the Company~~'s first mortgage bonds or commercial paper~~ ’s debt securities by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that~~ such term is defined by the Commission ~~for purposes of~~ in Rule ~~436(g)(2~~15c3-1(c)(2)(vi)(F) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the ~~Securities~~ Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the ~~Company's other debt securities~~possible change. (g) ~~On the Closing Date, the~~ The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement ~~duly~~ that shall have been executed and delivered by a duly authorized officer of the ~~Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date~~Company. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇~~▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇~~▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~▇, ▇▇~~▇ ▇▇▇ ▇▇▇▇, ~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇~~▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (PHH Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ Issuers contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ Issuers made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Issuers shall have requested and caused (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Issuers, to furnish to the Representative its opinion and negative assurance letter, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇, general counsel for the Issuers, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers. (b) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Initial Purchasers, ~~shall have furnished to the Representatives its opinion~~such opinion and negative assurance letter, dated the Closing Date and addressed to the ~~Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the~~ Initial Purchasers~~, such opinion or opinions, dated the Closing Date and addressed to the Representatives~~, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The ~~Company~~ Managing General Partner shall have furnished to the ~~Representatives~~ Representative a certificate of the ~~Company~~Managing General Partner, signed by (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board or the President and (y) the principal financial or accounting officer of the Managing General Partner, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Issuers in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the ~~Company has~~ Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the ~~Company~~ Issuers shall have requested and caused ~~PricewaterhouseCoopers~~ (i) Ernst & Young LLP to furnish to the ~~Representatives letters,~~ Representative a “comfort letter,” dated ~~respectively~~ as of the Execution ~~Time~~ Time, and a bring down comfort letter, dated as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of the Partnership and its consolidated subsidiaries contained in or incorporated by reference in the Disclosure Package and Final Memorandum, including any amendment or supplement thereto as of the date of the applicable letter and (ii) Deloitte & Touche LLP to furnish to the Representative a “comfort letter,” dated as of the Execution Time, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of OCI Co, OCI LP and their consolidate subsidiaries contained in or incorporated by reference in the Disclosure Package and Final Memorandum, including any amendment or supplement thereto as of the date of the applicable letter. All references in this Section 6(d) to the Preliminary Memorandum and the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ Partnership and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (f) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the ~~Company~~ Issuers shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) At the Closing Date, the Issuers and the Trustee shall have entered into the Indenture and the Representative shall have received an executed copy thereof. (i) At the Closing Date, the Issuers and the Representative shall have entered into the Registration Rights Agreement and the Representative shall have received an executed copy thereof. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the ~~Company~~ Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇~~▇▇ ~~▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Natural Resource Partners Lp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, to furnish the Representatives its opinion, dated the Closing Date and substantially in the form attached hereto as Exhibit A. (b) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇~~▇▇▇~~▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) the ~~Treasurer~~ President or the Chief Executive Officer and (ii) the principal financial officer or the principal accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Disclosure Package and the Final Memorandum, any ~~amendment~~ amendments or ~~supplement to the Final Memorandum~~ supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time, the Company shall have requested and caused E&Y to furnish to the Representatives a "comfort" letter, dated as of the Execution Time and substantially in the form attached hereto as Exhibit B, and at the Closing Time, the Company shall have requested and caused E&Y to furnish to the Representatives a "bring-down comfort" letter, dated as of the Closing Date, reaffirming the statements made in the "comfort" letter, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date. (e) At the Execution Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "comfort" letter, dated as of the Execution Time and substantially in the form attached hereto as Exhibit C, and at the Closing Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "bring-down comfort" letter, dated as of the Closing Date, reaffirming the statements made in the "comfort" letter, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date. (f) At the Execution Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "comfort" letter relating to Inamed Corporation, dated as of the Execution Time and substantially in the form attached hereto as Exhibit D, and at the Closing Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "bring-down comfort" letter, dated as of the Closing Date, reaffirming the statements made in the "comfort" letter, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fh) ~~On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company's ~~first mortgage bonds or commercial paper~~ 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~~436(g) under the Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley~~ ▇~~▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Allergan Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company and the Guarantors contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇~~▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form ~~and substance satisfactory to each of the Representatives and its counsel~~set forth in Exhibit B hereto. (b) The Representatives shall have received ~~from Winston &~~ an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Company, substantially in the form set forth in Exhibit C hereto. (c) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, in each case acting in such capacity, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Company and the Guarantors, in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the Company and the Guarantors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) to the best of his/her knowledge after reasonable investigation, since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), earnings or business ~~or properties~~ of the Company and its ~~subsidiaries~~Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ KPMG LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representatives and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form set forth in Exhibit D hereto. (ef) Subsequent to the Execution ~~Time or~~Time, or if earlier, the dates as of which information is given in the Disclosure Package, (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have ~~been~~ occurred (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; 6 or ~~(ii)~~ any change, or any development or event involving a prospective change, in the condition (financial or ~~affecting the financial condition~~other), ~~business~~ business, properties or ~~properties~~ results of operations of the Company and its ~~subsidiaries,~~ subsidiaries taken as ~~a whole~~one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Final Memorandum~~ Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in ~~any case referred to in clause (i) or (ii) above, is, in~~ the sole judgment of the Representatives, is so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating). (fg) The Notes shall be eligible for clearance and settlement through The Depository Trust Company. (h) On the Closing Date, (i) the ~~Securities~~ Company, the Trustee and the Escrow Agent shall ~~be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services~~have executed the Escrow Agreement, and the ~~Company shall have delivered to the~~ Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received ~~the Registration Rights Agreement duly~~ copies thereof, executed ~~and delivered~~ by the ~~Company~~ Company, the Trustee and the Escrow Agent and such agreement shall be in full force and effect ~~according to its terms at all times from~~ on and ~~after~~ as of the Closing Date; (ii) the Escrow Property equal to the Escrow Redemption Amount shall have been deposited with the Escrow Agent solely in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property pursuant to the Escrow Agreement. (hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not ~~be in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇~~Shearman & Sterling, Attention: ▇▇▇▇▇ ▇▇▇▇~~▇ &~~ ▇▇▇▇▇, ▇▇▇ ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Chemtura CORP)

Conditions to the Obligations of the Initial Purchasers. The several obligations of the Initial Purchasers to purchase the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company Parties contained ~~herein at~~ in Section 1 hereof as of the ~~Execution Time~~ date hereof and the Closing Date, to the accuracy of the statements of the Company Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Parties of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇~~The Company Parties shall have executed and delivered the Indenture, and the Initial Purchasers shall have received executed copies thereof. (b) The Company shall have entered into the DTC Agreement and the Initial Purchasers shall have received executed counterparts thereof. (c) The representations and warranties of the Company Parties contained herein shall be true and correct on the date hereof and on and as of the Closing Date as though then made; and the statements of the Company Parties and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date. (d) The Company Parties shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~L.L.P., counsel for the ~~Company~~Company Parties, ~~shall~~ to have furnished on the Closing Date to the ~~Representatives~~ Representative its opinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, substantially in the form ~~and substance satisfactory to each of the Representatives and its counsel.~~attached hereto as Exhibit A. (be) ~~The Representatives~~ On the Closing Date, the Representative shall have received from ~~Winston~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Pricing Disclosure Package, the Final Offering Memorandum (~~as amended or supplemented at the Closing Date~~together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (cf) ~~The~~ On the Closing Date, the Company Parties shall have furnished to the ~~Representatives~~ Representative a certificate of the ~~Company~~Managing Member and the General Partner, signed by the ~~Treasurer~~ Chief Executive Officer or the Chief Financial Officer of the ~~Company~~Managing Member and the General Partner, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the ~~Final Memorandum~~Pricing Disclosure Package, ~~any amendment or supplement to~~ the Final Offering Memorandum and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company Parties in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing ~~Date,~~ Date and the Company ~~has~~ Parties have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or prior to the Closing Date~~; and~~; (ii) since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto). (g) The Company Parties shall have requested and caused KPMG LLP to have furnished to the Representative, on the date of this Agreement and at the Closing Date, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the date of this Agreement and as of the Closing Date, in form and substance satisfactory to the Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to initial purchasers with respect to the Company’s and Guarantor’s financial statements and certain Company and Guarantor financial information contained or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum. (h) Except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum, (i) none of the Company Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum exclusive of any amendment or supplement thereto after the date hereof, any 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 or (ii) since such date there shall not have been any change in the capitalization or long-term debt of any of the Company Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, unitholders’ equity, properties, management, business or prospects of the Company Entities taken as a whole the effect of which, in any case referred to in clause (i) or (ii) above, is, in the ~~sole~~ judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto). (~~f) On the Closing Date, (~~i) Subsequent to the ~~Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services,~~ earlier of the Time of Sale and the ~~Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings,~~ execution and ~~(ii) since the Execution Time~~delivery of this Agreement, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds~~ ’s or ~~commercial paper~~ the Guarantor’s 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~~3(a)(62) under the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hj) Prior to the Closing Date, the Company Parties shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement~~. All opinions, ~~or if any of the opinions~~ letters and certificates mentioned above or elsewhere in this Agreement shall ~~not~~ be deemed to be in ~~all material respects~~ compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (EnLink Midstream Partners, LP)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇~~ The Company shall have requested and caused Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of Northeast Utilities Service Company, to furnish to the ~~Representatives its opinion~~Representative their opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, in form and substance reasonably satisfactory to ~~each of~~ the ~~Representatives~~ Representative and its counsel. In rendering such opinions, such counsels may rely (A) as to matters involving the application of laws of any jurisdiction other than Connecticut, the State of New York or Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Initial Purchasers; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇ LLP counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Treasurer~~ President and the principal financial or accounting officer of the Company or comparable officers of Northeast Utilities Service Company as agents of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date~~, and~~ ; (ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iiiii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company ~~and its subsidiaries, taken as a whole,~~ whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to furnish to the ~~Representatives~~ Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended June 30, 2001 and as at June 30, 2001, in accordance with the Statement on Auditing Standards No. 71, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review in accordance with the standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the six-month period ended June 30, 2001, and as at June 30, 2001, as indicated in their report included in the Final Memorandum; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders and Board of Directors of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 2000, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Final Memorandum do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the 14 Commission with respect to financial statements included in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Final Memorandum; or (2) with respect to the period subsequent to December 31, 2000, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the December 31, 2000 balance sheet included in the Final Memorandum, or for the period from January 1, 2001 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total net income or operating income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Final Memorandum, including the information set forth under the caption "Our Affiliates" in the Final Memorandum and the information included in "Management's Discussion and Analysis of Financial Condition and Results of Operations" included in the Final Memorandum, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Memorandum in this Section 6(d) include any amendment or supplement thereto at the date of the letter. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company ~~and its subsidiaries, taken as a whole,~~ whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On The Initial Purchasers shall have received on and as of the Closing Date a certificate of an authorized officer of the Company, as to and attaching (i) resolutions of the Company's board of directors authorizing and approving the transactions contemplated by the Transaction Documents to which it is a party, (ii) the Company's organizational documents and (iii) the incumbency of the officers of the Company or Northeast Utilities Service Company as agents of the Company executing the Transaction Documents to which the Company is a party. (g) The Initial Purchasers shall have received on and as of the Closing Date a certificate of an authorized officer of the Trustee, as to and attaching (i) resolutions of the Trustee's board of directors authorizing and approving the transactions contemplated by the Transaction Documents, (ii) the Trustee's organizational documents and (iii) certified copies of powers of attorney or signature circulars, if any, pursuant to which officers of the Trustee shall execute the Transaction Documents. (h) Each Transaction Document (other than the Initial Select Power Sales Agreement) shall have been duly executed by each of the parties thereto on or prior to the Closing Date, shall be in form and substance satisfactory to the Initial Purchasers and shall have been delivered to the Initial Purchasers. A copy of the Initial Select Power Sales Agreement shall have been delivered to the Initial Purchasers. (i) The Initial Purchasers shall have received on and as of the Closing Date a certificate of an authorized representative of the Trustee to the effect that the Debt Service Reserve Account has been established. (j) The Securities shall be ~~rated "A3" by~~ eligible for clearance and settlement through The Depository Trust Company. (k) ▇▇▇▇▇'▇ Investors ~~Service~~Service Inc. ("▇▇▇▇▇'▇"), ▇▇▇▇▇ IBCA Inc. ("Fitch") and ~~"A-" by~~ Standard & Poor's ~~Rating Services, and the Company~~ Ratings Services Inc. ("S&P") shall have ~~delivered~~ rated the Securities at least Baa3, BBB- and BBB-, respectively. Subsequent to the ~~Representatives evidence satisfactory~~ execution and delivery of this Agreement and prior to the ~~Representatives confirming that the Securities have such ratings, and~~ Closing Date (iii) ~~since the Execution Time, there~~ no downgrading shall ~~not~~ have occurred ~~a downgrading~~ in the rating ~~assigned to~~ accorded the Securities by Moody's, Fitch, S&P or any ~~of the Company's first mortgage bonds or commercial paper by any~~ other "nationally recognized statistical rating ~~agency~~organization", as ~~that~~ such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the ~~Act,~~ Securities Act and (ii) no such ~~securities rating agency~~ organization shall have publicly announced that it has under surveillance or ~~review,~~ review (other than an announcement with positive implications of a possible ~~negative implications~~upgrading), its rating of the ~~Securities or any of the Company's other debt securities~~Securities. (gl) On S&W Consultants, Inc. shall have (i) consented to the inclusion of its report in the Preliminary Memorandum, the Final Memorandum and any registration statement filed in accordance with the Registration Rights Agreement and (ii) provided a letter, dated the Closing Date, confirming its report and the conclusions therein as of the Closing Date. (m) PA Consulting, Inc. shall have (i) consented to the inclusion of its report in the Preliminary Memorandum, the Final Memorandum and any registration statement filed in accordance with the Registration Rights Agreement and (ii) provided a letter, dated the Closing Date, confirming its report and the conclusions therein as of the Closing Date. (n) Prior to the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇~~▇ ▇▇▇▇▇ ▇~~▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Northeast Generation Co)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the ~~Securities~~ Notes shall be subject to the continued accuracy of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution ~~Time~~ Time"), and at the Closing ~~Date,~~ Date to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused each of ▇▇▇▇▇▇ , Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, ~~shall~~ and ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, Virginia counsel for the Company, to have furnished to the ~~Representatives its~~ Initial Purchasers their respective opinions, each dated the Closing Date and addressed to the Initial Purchasers, to the effect set forth in Exhibits E-1 and E-2 hereto, respectively. (b) The Company shall have requested and caused ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, regulatory counsel for the Company, to have furnished to the Initial Purchasers their opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, to the effect set forth in ~~form and substance satisfactory to each of the Representatives and its counsel~~Exhibit F hereto. (bc) The Representatives shall have received from ~~Winston~~ Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Initial Purchasers~~Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the ~~Securities~~Notes, the ~~Mortgage, the Registration Rights Agreement~~Indenture, the Final Memorandum (~~as amended or supplemented at the Closing Date~~together with any supplement thereto) and other related matters as the ~~Representatives~~ Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they ~~request~~ may require for the purpose of enabling them to pass upon such matters. (cd) ~~The~~ Each of the following conditions shall have been satisfied and the Company shall have furnished to the ~~Representatives~~ Initial Purchasers a certificate of the Company, signed by each of the ~~Treasurer~~ Chief Executive Officer and the Chief Financial Officer of the Company or such other duly authorized officers of the Company, dated the Closing Date, to the effect that the ~~signer of such certificate has~~ signatories thereto have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and~~; (ii) since the date of the most recent financial statements ~~included~~ incorporated by reference in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no ~~material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole~~Material Adverse Change, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto); and (iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently). (de) At the Execution Time and at the Closing Date, ~~the Company~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have ~~requested and caused PricewaterhouseCoopers LLP to furnish~~ furnished to the ~~Representatives~~ Initial Purchasers a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Initial Purchasers, addressed to the Initial Purchasers confirming that they are independent accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma information incorporated by reference in the Final Memorandum and reported on by them comply as to form in all material respects with generally accepted accounting principles; (ii) based upon a reading of the latest unaudited consolidated financial statements made available by the Company; their limited review in accordance with the standards established by the American Institute of Certified Public Accountants ("AICPA") of the unaudited interim financial information for the date covered by such financial statements for the period; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; such specified procedures would include, but are not limited to, a reading of minutes of the shareholders' and directors' meetings (and any meetings of committees of the Board of Directors) of the Company, and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 1998, nothing has come to their attention that causes them to believe that: (1) any unaudited financial statements incorporated by reference in the Final Memorandum do not comply as to form in all material respects with accounting requirements of the Securities Act and with the published rules and regulations of the Commission; and any unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements incorporated by reference in the Final Memorandum; or (2) with respect to the period subsequent to December 31, 1998, there were any changes, at January 7, 2000, in the long- term obligations of the Company and its subsidiaries or capital stock of the Company or decreases in the consolidated assets or shareholders' equity of the Company as compared with the amounts shown on the December 31, 1998 consolidated balance sheet incorporated by reference in the Final Memorandum, or for the period from December 31, 1998 to January 7, 2000 there were any decreases, as compared with the corresponding period in the preceding year, in net sales, operating expenses, operating income or income (loss) before income taxes and extraordinary items or in total, of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Final Memorandum is mathematically accurate and agrees with the accounting records of the Company and its subsidiaries, in each case, excluding any questions of legal interpretation. All references in this Section 6(e) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the date of the letter. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there shall not have been (i) any ~~change~~ change, decrease or ~~decrease~~ increase specified in the letter or letters referred to in paragraph (de) of this Section 6; 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~financial condition~~business, proposed business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the ~~sole~~ judgment of the ~~Representatives~~Initial Purchasers, so material and adverse as to make it impractical or inadvisable to market the ~~Securities~~ Notes as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securitiesMemorandum. (g) On or prior to the Closing Date, the Registration Agreement, in form and substance satisfactory to the Company and its counsel and the Initial Purchasers and their counsel, shall have been executed and shall have been delivered to you and the Trustee. (h) On or prior to the Closing Date, the Company and the Trustee shall have entered into and delivered the Indenture and the Initial Purchasers shall have received ~~the Registration Rights Agreement duly executed and delivered by the Company and such agreement~~ a counterpart, conformed as executed, thereof. The Indenture shall be in full force and ~~effect according to its terms at all times from and after the Closing Date~~effect. (hi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Initial Purchasers such further information, certificates and documents as the ~~Representatives~~ Initial Purchasers may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the ~~Representatives~~ Initial Purchasers and ~~counsel for the Initial Purchasers~~Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Initial Purchasers. Notice of such cancellation shall be given to the Company in writing or by telephone or ~~facsimile~~ telegraph confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇▇▇▇▇▇ , Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇ ~~▇▇▇▇▇ ▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇, ~~▇▇▇▇▇ ▇▇▇▇~~Chicago, ~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~Illinois 60601, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Focal Communications Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the ~~Representatives~~ Initial Purchasers its opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, in form and substance reasonably satisfactory to ~~each of~~ the ~~Representatives and its counsel~~Initial Purchasers. (b) The ~~Representatives~~ Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇▇ PC, Washington counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers. (c) The Initial Purchasers shall have received from ~~Winston~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to ~~the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related~~ such matters as the ~~Representatives~~ Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Initial Purchasers a certificate of the Company, signed by (x) the ~~Treasurer~~ President and (y) the principal financial or accounting officer of the Company, in their respective capacities as such, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and ~~that~~that to their knowledge after reasonable investigation: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) they have examined the Disclosure Package and the Final Memorandum, and, in their opinion, (A) (1) the Final Memorandum, as of its date and on the Closing Date, and (2) the Disclosure Package, as of the Execution Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Execution Time, no event has occurred that should have been set forth in a supplement or amendment to the Final Memorandum that has not been so set forth; and (iiiii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise, ~~business or properties of~~ including the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretoCompany’s net operating loss tax benefits), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Inc. to furnish to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Initial Purchasers and containing statements and information of the type customarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Memorandum; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such Closing Date. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease to any of the balance sheet items or income statement items described in paragraph 8 of the comfort letter delivered on the Execution Date referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Initial Purchasers, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the ~~Closing Date~~Execution Time, the Company shall have furnished to the ~~Representatives such further information, certificates and documents as~~ Initial Purchasers lock-up letters substantially in the ~~Representatives may reasonably request~~form of Exhibit A hereto from each director of the Company addressed to the Initial Purchasers. (i) The Initial Purchasers shall have received a letter from KKR Management Holdings L.P. and KKR Fund Holdings L.P. in form and substance set forth in Exhibit B. (j) The Company shall have executed, delivered and filed with the Secretary of State of the State of Washington the Certificate of Designation. (k) The Company shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchasers. (l) 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 Securities; 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 Securities. (m) The Initial Purchasers shall have received on and as of the Closing Date, satisfactory evidence of the due qualification to do business of the Company in its jurisdiction of organization, in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdiction. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Initial Purchasers and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Initial Purchasers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered ~~at the office of~~ to counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing DateInitial Purchasers.

Appears in 1 contract

Sources: Purchase Agreement (Wmi Holdings Corp.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ Issuers contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ Issuers made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Issuers shall have requested and caused (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Issuers, to furnish to the Representative its opinion and negative assurance letter, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex B hereto and (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel for the Issuers, to furnish to the Representative her opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex C hereto. (b) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~LLP, counsel for the ~~Company~~Initial Purchasers, ~~shall have furnished to the Representatives its opinion~~such opinion and negative assurance letter, dated the Closing Date and addressed to the ~~Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the~~ Initial Purchasers~~, such opinion or opinions, dated the Closing Date and addressed to the Representatives~~, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The ~~Company~~ Managing General Partner shall have furnished to the ~~Representatives~~ Representative a certificate of the ~~Company~~Managing General Partner, signed by (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board or the President and (y) the principal financial or accounting officer of the Managing General Partner, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Issuers in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the ~~Company has~~ Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the ~~Company~~ Issuers shall have requested and caused ~~PricewaterhouseCoopers~~ Ernst & Young LLP to furnish to the ~~Representatives letters,~~ Representative a “comfort letter,” dated ~~respectively~~ as of the Execution ~~Time~~ Time, and a bring down comfort letter, dated as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of the Partnership and its consolidated subsidiaries contained in or incorporated by reference in the Disclosure Package and Final Memorandum, including any amendment or supplement thereto as of the date of the applicable letter. All references in this Section 6(d) to the Preliminary Memorandum and the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (e) At the time of execution of this Agreement, the Initial Purchasers shall have received from the Partnership a copy of an oversight review letter from Netherland, ▇▇▇▇▇▇ & Associates, Inc., independent petroleum engineers, prepared on behalf of the Partnership, with respect to the estimates prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Oil Company of the proved reserves of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Acquisition. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ Partnership and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the ~~Company~~ Issuers shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (i) At the Closing Date, the Issuers and the Trustee shall have entered into the Indenture and the Representative shall have received an executed copy thereof. (j) At the Closing Date, the Issuers and the Representative shall have entered into the Registration Rights Agreement and the Representative shall have received an executed copy thereof. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the ~~Company~~ Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~LLP, ~~▇▇ ▇▇~~counsel for the Initial Purchasers, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ~~▇▇▇▇▇ ▇▇▇▇~~Suite 4200, ~~▇▇▇▇▇▇▇~~Houston, ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~Texas, 77002 on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Natural Resource Partners Lp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the ~~Securities~~ Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the ~~Representatives~~ Representative its opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, in the form ~~and substance satisfactory to each~~ of ~~the Representatives and its counsel.~~which is attached as Exhibit A. (b) The ~~Representatives~~ Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, Chief Counsel, Corporate for the Company, to furnish to the Representative her opinion, dated the Closing Date and addressed to the Initial Purchasers, the form of which is attached as Exhibit B. (c) The Representative shall have received from ~~Winston~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the ~~Securities~~Notes, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Pricing Disclosure Package, the Final Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Treasurer of~~ Chief Financial Officer and the ~~Company~~Treasurer, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Pricing Disclosure Package, the Final Offering Memorandum, any amendment or supplement to the Final Offering Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement were true and correct as of the Execution Time and are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in ~~or contemplated by~~ the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto). (de) At On the ~~Execution Time~~ date hereof, the Representative shall have received from PricewaterhouseCoopers LLP, the independent registered public accounting firm for the Company, a “comfort letter” dated the date hereof addressed to the Initial Purchasers, in form and at substance reasonably satisfactory to the Representative, covering certain financial information in the Pricing Disclosure Package and other customary matters. In addition, on the Closing Date, the ~~Company~~ Representative shall have ~~requested and caused PricewaterhouseCoopers LLP to furnish~~ received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the ~~Representatives letters, dated respectively as of the Execution Time and as of the Closing Date~~Initial Purchasers, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover certain financial information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date. (ef) Subsequent to the Execution Time or, if earlier, the ~~dates as~~ date of ~~which information is given~~ the most recent financial statements included in the ~~Final Memorandum~~ Pricing Disclosure Package (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in ~~or contemplated in~~ the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the ~~Securities~~ offering, sale or delivery of the Notes as contemplated by the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the Securities~~ The Notes shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through DTC. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s 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 Section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the ~~Securities~~ Exchange Act) or any notice given of any intended or potential decrease in any such rating (including notice of an adverse change in the outlook for such rating) or of a possible change in any such rating that does not indicate the direction of the ~~Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (ij) As soon as practicable after the closing of the offering of the Notes, the Company shall apply the net proceeds of the sale of the Notes as described in the Pricing Disclosure Package and the Final Offering Memorandum. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, ~~at Sidley~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ~~▇▇▇▇▇ ▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇~~▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Levi Strauss & Co)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at as of the Execution Time (defined below) and the Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ Clifford Chance US LLP shall have furnished to the Initial Purchasers their written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex B hereto. (b) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indentures, the Registration Rights ~~Agreement, the Final Memorandum (as amended or supplemented at the Closing Date)~~ Agreements and other related matters as the ~~Representatives~~ Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the ~~Representatives~~ Initial Purchasers a certificate of the Company, signed by the ~~Treasurer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to the Final~~ Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing ~~Date,~~ Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or prior to the Closing Date; (ii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently); and (iiiii) since the date of the most recent financial statements included or incorporated by reference in the ~~Final~~ Memorandum (exclusive of any ~~amendment or~~ supplement thereto), there has been no material adverse ~~change in~~ effect on the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Final~~ Memorandum (exclusive of any supplement thereto). (d) The Company shall have furnished to the Initial Purchasers a letter of Deloitte & Touche LLP addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Memorandum (exclusive of any amendment thereof), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Memorandum (exclusive of any supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the ~~Representatives~~Initial Purchasers, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by the ~~Final~~ Memorandum (exclusive of any amendment ~~or supplement thereto~~thereof). (f) ~~On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s 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~~436(g) under the Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) The issuance and sale of the Securities pursuant to this Agreement shall not have been enjoined (temporarily or permanently), no restraining order or other injunctive order shall have been issued and no action, suit or proceeding shall have been commenced with respect to this Agreement before any court or governmental authority. (h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights ~~Agreement duly~~ Agreements executed ~~and delivered~~ by the Company and such ~~agreement~~ agreements shall be in full force and effect ~~according to its terms~~ at all times from and after the Closing Date. (hi) The Indentures shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed by the Company, and the Securities shall have been duly authenticated by the Trustee. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 ~~will~~ shall be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇~~ ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇▇▇▇~~▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Lennar Corp /New/)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the satisfaction or waiver of the following additional ~~conditions~~conditions on or prior to the Closing Date: (a) ~~Sidley~~ The Company shall have requested and caused (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel for the Company and the Guarantors, to furnish its usual and customary opinion and negative assurance letter and (ii) ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, special counsel for the Company and the Guarantors, to furnish its usual and customary opinion, each dated the Closing Date and addressed and reasonably satisfactory to the Representative, the forms of which are attached hereto as Exhibit A-1 and A-2, respectively. (b) In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the jurisdiction of incorporation of the Company, the State of New York or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Initial Purchasers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Disclosure Package, the Preliminary Memorandum and the Final Memorandum in this Section 6(b) include any amendment or supplement thereto at the Closing Date. (c) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent audited financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has ~~been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or~~ not ~~arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of~~ occurred any ~~amendment or supplement thereto)~~Material Adverse Effect. (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ BDO USA, LLP to furnish to the ~~Representatives letters,~~ Representative a “comfort letter,” dated ~~respectively~~ as of the Execution ~~Time~~ Time, and a “bring down comfort letter,” dated as of the Closing Date, with respect to the Company and White Cliffs, as applicable, in each case, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information included or incorporated by reference in the Disclosure Package and the Final Memorandum, including any amendment or supplement thereto as of the date of the applicable letter. (ef) Subsequent to the Execution Time orand on or prior to the Closing Date, ~~if earlier~~there shall not have occurred a Material Adverse Effect, except as set forth in or contemplated in the ~~dates as of which information is given in~~ Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the ~~Representatives~~Representative, ~~so material and adverse as~~ to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s 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~~3(a)(62) ~~under~~ of the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency~~ or of a possible change in any such rating that does not indicate the direction of the possible change. (i) The Representative shall have ~~publicly announced that~~ received evidence reasonably satisfactory to it ~~has under surveillance~~ of (i) delivery, either prior to or ~~review,~~ simultaneously with ~~possible negative implications, its rating~~ the purchase of the Securities by the Initial Purchasers, of one or ~~any~~ more irrevocable notices for the redemption of all of the ~~Company's other debt securities~~outstanding Existing Notes and (ii) the Satisfaction and Discharge. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hj) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇~~▇▇ ~~▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (SemGroup Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ JEH Parties contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ JEH Parties made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ JEH Parties of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇~~The Issuers shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~L.L.P., counsel for the ~~Company~~Issuers, ~~shall have furnished~~ to furnish to the ~~Representatives~~ Representative its opinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, in form and substance satisfactory to ~~each of~~ the ~~Representatives and its counsel~~Representative, to the effect set forth in Annex B hereto. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ JEH Parties shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The ~~Company~~ Issuers shall have furnished to the ~~Representatives~~ Representative a certificate of each of the ~~Company~~JEH Parties, signed by (x) the ~~Treasurer~~ Chairman of the Board, the President or Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ JEH Parties in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the ~~Company~~ JEH Parties has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ JEH Parties and ~~its~~ their respective subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the ~~Company~~ Issuers shall have requested and caused PricewaterhouseCoopers LLP to furnish to the ~~Representatives~~ Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained in the Disclosure Package and the Final Memorandum. (e) At the Execution Time and at the Closing Date, the Issuers shall have requested and caused CGA to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative containing statements and information of the type ordinarily included in reserve engineers’ “confirmation letters” to Initial Purchasers with respect to the reserve reports, estimates of proved reserves and other reserve information contained in the Disclosure Package and the Final Memorandum. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph~~ paragraphs (d) and (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ JEH Parties and ~~its subsidiaries,~~ their respective subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds~~ ’s or ~~commercial paper~~ the Issuers’ 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~~3(a)(62) under the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the ~~Company~~ JEH Parties shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the ~~Company~~ Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇~~▇▇▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ~~▇▇▇▇▇ ▇▇▇▇~~L.L.P., counsel for the Initial Purchasers, at ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇~~▇▇▇~~▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Jones Energy, Inc.)

Conditions to the Obligations of the Initial Purchasers. The ------------------------------------------------------- obligations of the Initial Purchasers to purchase the ~~Securities~~ Certificates as provided in this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein at as of the ~~Execution Time~~ date hereof and as of the ~~Closing~~ Settlement Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional ~~conditions~~conditions with respect to the Certificates: (a) ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company,~~ The Initial Purchasers shall have ~~furnished to~~ received the ~~Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel~~Offering Memorandum. (b) The ~~Representatives~~ Initial Purchasers shall have received ~~from Winston & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions~~a certificate, dated the ~~Closing~~ Settlement Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate executed by an executive officer of the Company, ~~signed by the Treasurer of the Company, dated the Closing Date,~~ to the effect ~~that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and~~ that: : (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the ~~Closing Date with the same effect as if made on the Closing~~ Settlement Date, ; and (ii) the Company has in all material respects complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or prior to the ~~Closing~~ Settlement Date~~; and~~. (iic) ~~since the date~~ The Initial Purchasers shall have received with respect to each of the ~~most recent financial statements included in~~ Company, the ~~Final Memorandum (exclusive~~ Member and Ventas a good standing certificate from the Secretary of ~~any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties~~ State of the ~~Company and its subsidiaries~~State of Delaware, ~~taken as a whole, whether or~~ dated not ~~arising from transactions in~~ earlier than ten days prior to the ~~ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)~~Settlement Date. (d) At The Initial Purchasers shall have received from the ~~Execution Time~~ Secretary or an assistant secretary of Ventas, in his or her individual capacity, a certificate, dated the Settlement Date, to the effect that: (i) each individual who, as an officer or representative of Ventas, signed this Agreement or any other document or certificate delivered on or before the Settlement Date in connection with the transactions contemplated by this Agreement, the Mortgage Loan Purchase Agreement or the Trust and Servicing Agreement, was at the ~~Closing Date~~respective times of such signing and delivery, ~~the Company shall have requested~~ and ~~caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively~~ is as of the ~~Execution Time~~ Settlement Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the part of Ventas) has occurred since the date of its good standing certificates referred to in paragraph (c) above which ------------ has affected the good standing of Ventas under the laws of the State of Delaware. The certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an assistant secretary of Ventas) of the certificate of incorporation and by-laws of Ventas, each as in effect on the Settlement Date, and of all resolutions of the board of directors of Ventas required in connection with the authorization of the transactions contemplated by this Agreement, the Mortgage Loan Purchase Agreement and the Trust and Servicing Agreement. (e) The Initial Purchasers shall have received from the Secretary or an assistant secretary of the Member, in his or her individual capacity, a certificate, dated the Settlement Date, to the effect that: (i) each individual who, as an officer or representative of the Member, signed any document or certificate delivered on or before the Settlement Date in connection with the transactions contemplated by this Agreement, the Mortgage Loan Purchase Agreement or the Trust and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the ~~Closing~~ Settlement Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the part of the Member) has occurred since the date of its good standing certificates referred to in paragraph (c) above which has affected the ------------ good standing of the Member under the laws of the State of Delaware. The certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an assistant secretary of the Member) of the certificate of incorporation and by-laws of the Member, each as in effect on the Settlement Date, and of all resolutions of the board of directors of the Member required in connection with the authorization of the transactions contemplated by this Agreement, the Mortgage Loan Purchase Agreement and the Trust and Servicing Agreement. (f) The Initial Purchasers shall have received from an officer of the Company, in his or her individual capacity, a certificate, dated the Settlement Date, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Mortgage Loan Purchase Agreement, the Trust and Servicing Agreement or any other document or certificate delivered on or before the Settlement Date in connection with the transactions contemplated by this Agreement, the Mortgage Loan Purchase Agreement or the Trust and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Settlement Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the part of the Company) has occurred since the date of its good standing certificate referred to in paragraph (c) above which ------------- has affected the good standing of the Company under the laws of the State of Delaware. The certificate shall be accompanied by true and complete copies (certified as such by such officer of the Company) of the certificate of formation and the limited liability company agreement of the Company, each as in effect on the Settlement Date, and of all required consents of the sole member of the Company relating to the transactions contemplated by this Agreement, the Mortgage Loan Purchase Agreement and the Trust and Servicing Agreement. (g) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Company, the Member and Ventas, written opinions addressing, among other things, enforceability and general corporate matters in form and substance satisfactory to the Initial Purchasers, dated the Settlement Date and addressed to the Initial Purchasers, each of the other parties to the Trust and Servicing Agreement and each of the Rating Agencies. (h) The Initial Purchasers shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company, the Member and Ventas, a written opinion addressing, among other things, enforceability, tax, ERISA, the Investment Company Act of 1940, as amended, the Trust Indenture Act of 1939, as amended and the Securities Act of 1933, as amended, and disclosure matters, in form and substance satisfactory to the ~~Representatives~~Initial Purchasers, dated the Settlement Date and addressed to the Initial Purchasers, each of the other parties to the Trust and Servicing Agreement and each of the Rating Agencies. (ei) ~~Subsequent~~ The Initial Purchasers shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the ~~Execution Time or~~Company, ~~if earlier~~a written opinion addressing, among other things, bankruptcy matters, in form and substance satisfactory to the ~~dates as~~ Initial Purchasers, dated the Settlement Date and addressed to the Initial Purchasers, each of ~~which information is given~~ the other parties to the Trust and Servicing Agreement and each of the Rating Agencies. (j) The Initial Purchasers shall have received from Sidley, Austin, Brown & Wood, counsel to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, a letter addressing the contents of the Offering Memorandum, in form and substance satisfactory to the Initial Purchasers, dated the Settlement Date and addressed to the Initial Purchasers, each of the other parties to the Trust and Servicing Agreement and each of the Rating Agencies. (k) The Initial Purchasers shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special health care regulatory counsel to Ventas, a written opinion addressing disclosure matters, including the accuracy of the description in the ~~Final~~ Offering Memorandum ~~(exclusive~~ of ~~any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in~~ the ~~letter or letters referred to in paragraph (d)~~ regulation of ~~this Section 6; or (ii) any change, or any development involving a prospective change~~skilled nursing facilities, in ~~or affecting~~ form and substance satisfactory to the ~~financial condition~~Initial Purchasers, ~~business or properties of~~ dated the Settlement Date and addressed to the Initial Purchasers. (l) The Initial Purchasers shall have received all other opinions rendered to the rating agencies identified on Schedule I ---------- hereto, by counsel to Ventas, the Company and ~~its subsidiaries~~the Member and each such opinion shall be dated the Settlement Date and addressed to the Initial Purchasers. (m) The Initial Purchasers shall have received such other opinions, ~~taken~~ certificates and documents as the Initial Purchasers may reasonably require, reasonably satisfactory in form and substance to them, for the purpose of enabling the Initial Purchasers and their counsel to pass upon the issuance and sale of the Certificates as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. (n) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, certified public accountants, a ~~whole~~letter, ~~whether or not arising from transactions~~ dated as of the date of the Offering Memorandum, in form and substance satisfactory to the ~~ordinary course~~ Initial Purchasers and counsel for the Initial Purchasers, stating in effect that, using the assumptions and methodology used by the Company, all of ~~business~~which shall be described in such letter, ~~except as~~ they have recalculated such numbers and percentages set forth in ~~or contemplated in~~ the ~~Final~~ Offering Memorandum ~~(exclusive of any amendment or supplement thereto)~~ as the ~~effect of which, in any case referred~~ Initial Purchasers may reasonably request and as are agreed to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ ~~Investors Service~~▇▇▇▇▇▇▇▇, ~~Inc. and "A-" by Standard & Poor's Rating Services~~compared the results of their calculations to the corresponding items in the Offering Memorandum, and found each such number and percentage set forth in the ~~Company~~ Offering Memorandum to be in agreement with the results of such calculations. (o) The respective Classes of Certificates (other than the Class R Certificates) shall have ~~delivered to~~ been rated as specified in Schedule I ---------- and such ratings shall not have been rescinded. (p) Since the ~~Representatives evidence satisfactory to~~ date of the ~~Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time,~~ Offering Memorandum there shall not have ~~occurred a downgrading~~ been in the ~~rating assigned to the Securities or any~~ opinion of the ~~Company's first mortgage bonds~~ Initial Purchasers any material adverse change in the condition, financial or ~~commercial paper by any "nationally recognized statistical rating agency"~~otherwise, in the earnings, business affairs or business prospects of (i) Ventas and its affiliates considered as ~~that term is defined by~~ one enterprise, (ii) the ~~Commission for purposes of Rule 436(g)(2~~Kindred Group and (iii) ~~under~~ the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securitiesMortgaged Properties. (gq) On As of the ~~Closing~~ Settlement Date, ~~the~~ each Initial ~~Purchasers~~ Purchaser shall have received funding for the ~~Registration Rights Agreement duly executed and delivered~~ full amount of its percentage of the Initial Aggregate Certificate Principal Balance as set forth on Schedule I hereto from investors solicited by it to purchase the ~~Company and~~ Certificates, or will have made the determination in its sole discretion that such ~~agreement shall~~ funding will be ~~in full force and effect according to its terms at all times from and after the Closing Date~~provided by such investors. (hr) ~~Prior~~ The structuring fees and expenses payable to (x) MLPFS shall be paid to it on the ~~Closing Date~~Settlement Date in an amount and as set forth in the letter dated July 11, 2001 from MLPFS to Ventas and (y) MSCI, shall be paid to it on the ~~Company~~ Settlement Date in an amount as separately agreed to by Ventas and MSCI, whether in writing or otherwise, provided that, such amount shall ~~have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i)~~ be not less than $225,000. If any ~~of the conditions~~ condition specified in this Section 6 7 shall not have --------- been fulfilled in all material respects when and as provided in by this Agreement, or if any of the opinions and certificates mentioned above in this Section 7 or elsewhere in this Agreement shall not be in all --------- material respects reasonably satisfactory in form and substance to the ~~Representatives~~ Initial Purchasers and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the ~~Closing~~ Settlement Date by the ~~Representatives~~Initial Purchasers, and such termination shall be without liability of any party to any other party, except as provided in Section 6 and --------- except that Section 1 and Section 9 shall survive any such termination --------- --------- and remain in full force and effect. Notice of such cancellation shall be given to the Company in ~~writing~~ writing, or by telephone or ~~facsimile~~ by either telegraph or telecopier confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Certificate Purchase Agreement (Ventas Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Subsidiary Guarantors contained herein at as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Subsidiary Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused Winston & ▇▇▇▇▇▇ ~~▇▇▇▇▇ & ▇▇▇▇~~LLP, counsel for the Company, ~~shall~~ to have furnished to the Representatives ~~its~~ their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form ~~and substance satisfactory to each of the Representatives and its counsel~~attached as Annex A hereto. (b) The Representatives shall have received from ~~Winston~~ Weil, Gotshal & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the ~~Final~~ Disclosure Package, the Offering Memorandum (~~as amended or supplemented at the Closing Date~~together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the ~~Company~~Company and any Subsidiary Guarantors, signed by the ~~Treasurer~~ Chief Executive Officer or the President and the principal financial or accounting officer of the ~~Company~~Company and such Subsidiary Guarantor, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has carefully~~ have examined the ~~Final Memorandum~~Disclosure Package, the Offering Memorandum and any ~~amendment~~ supplements or ~~supplement to~~ amendments thereto, as well as each electronic road show used in connection with the ~~Final Memorandum~~ offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company and each Subsidiary Guarantor in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing ~~Date,~~ Date and the Company ~~has~~ and each Subsidiary Guarantor have complied with all the agreements and satisfied all the conditions on ~~its~~ their part to be performed or satisfied ~~hereunder~~ at or prior to the Closing Date~~; and~~; (ii) since the date of the most recent financial statements included in the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any ~~amendment or~~ supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated by in the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any ~~amendment or~~ supplement thereto).; and (iii) there shall not have occurred any downgrading, nor shall any notice have been given to the Company of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any “nationally recognized statistical rating organization” as the term is defined for purposes of Section 3(a)(26) under the Exchange Act; (d) At The Company shall have furnished to the Representatives certificates of the Company, signed by the Chief Executive Officer, the President or the principal financial officer of the Company, dated the date hereof and the Closing Date, in form and substance satisfactory to the Representatives. (e) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Initial Purchasers, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the ~~Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters~~Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and the Public Company Accounting Oversight Board and containing statements and information of the type customarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum (together with any supplement thereto), provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Offering Memorandum in this paragraph (e) include any supplement thereto at the date of the letter. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), business or ~~properties~~ results of operations of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the ~~sole~~ judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering, sale or delivery of the Securities as contemplated by the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to~~ of any of the ~~Securities~~ Notes by either Standard & Poor’s Financial Services LLC, a subsidiary of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or ▇▇▇▇▇’▇ Investors Services, Inc. or any of their respective successors or any notice given to the ~~Company's first mortgage bonds~~ Company of any intended or ~~commercial paper by~~ potential decrease in any ~~"nationally recognized statistical~~ such rating ~~agency", as~~ or of a possible change in any such rating that ~~term is defined by~~ does not indicate the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating direction of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Datepossible change. (h) Prior to the Closing Date, the Company and each Subsidiary Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 ~~will~~ shall be delivered at the office of ~~counsel for the Company~~Weil, ~~at Sidley~~ Gotshal & ▇▇▇▇▇▇ ▇▇LLP, counsel for the Initial Purchasers, at ▇▇▇ ~~& ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇~~▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇~~▇▇▇▇▇▇, ▇▇▇▇▇▇▇~~▇ ~~▇▇▇▇▇, on~~ the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Lear Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, to furnish the Representatives its opinion, dated the Closing Date and substantially in the form attached hereto as Exhibit A. (b) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇~~▇▇▇~~▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) the ~~Treasurer~~ President or the Chief Executive Officer and (ii) the principal financial officer or the principal accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Disclosure Package and the Final Memorandum, any ~~amendment~~ amendments or ~~supplement to the Final Memorandum~~ supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time, the Company shall have requested and caused E&Y to furnish to the Representatives a "comfort" letter, dated as of the Execution Time and substantially in the form attached hereto as Exhibit B, and at the Closing Time, the Company shall have requested and caused E&Y to furnish to the Representatives a "bring-down comfort" letter, dated as of the Closing Date, reaffirming the statements made in the "comfort" letter, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date. (e) At the Execution Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "comfort" letter, dated as of the Execution Time and substantially in the form attached hereto as Exhibit C, and at the Closing Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "bring-down comfort" letter, dated as of the Closing Date, reaffirming the statements made in the "comfort" letter, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date. (f) At the Execution Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "comfort" letter relating to Inamed Corporation, dated as of the Execution Time and substantially in the form attached hereto as Exhibit D, and at the Closing Time, the Company shall have requested and caused KPMG to furnish to the Representatives a "bring-down comfort" letter, dated as of the Closing Date, reaffirming the statements made in the "comfort" letter, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fh) On The Securities shall have been designated as PORTAL-eligible securities in accordance with the ~~Closing Date, (i)~~ rules and regulations of the NASD and the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (i) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company's ~~first mortgage bonds or commercial paper~~ 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~~436(g) under the Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency~~ or of a possible change in any such rating that does not indicate the direction of the possible change. (j) The Company shall have ~~publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ caused the shares of Common Stock initially issuable upon conversion of the Securities ~~or any of~~ to be approved for listing, subject to issuance, on the ~~Company's other debt securities~~New York Stock Exchange. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley~~ ▇~~▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Allergan Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP counsel for the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ & Ingersoll, LLP, counsel ~~for~~ to the Company, ~~shall have furnished~~ to furnish to the ~~Representatives its opinion~~Initial Purchasers their respective opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, in ~~form~~ substantially the forms attached hereto as Exhibits 7A and ~~substance satisfactory to each of the Representatives and its counsel.~~7B. (b) The ~~Representatives~~ Initial Purchasers shall have received from ~~Winston~~ Cravath, Swaine & ▇▇▇▇~~▇▇,~~ ▇ LLP counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchaser, with respect to the issuance and sale of the Securities, the ~~Mortgage, the~~ Registration Rights Agreement, ~~the Final Memorandum (as amended or supplemented at the Closing Date)~~ and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the ~~Representatives~~ Initial Purchaser a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Final Memorandum, and to their knowledge there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of MCC and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers LLP~~ Deloitte & Touche to furnish to the ~~Representatives~~ Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Final Memorandum and reported on by them comply as to form with the applicable accounting requirements of Regulation S-X; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with the standards established under Statement on Auditing Standards No. 100 of the unaudited interim financial information for the six-month period ended June 30, 2004 and as at June 30, 2004; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2003, nothing came to their attention which caused them to believe that: (A) any unaudited financial statements included or incorporated by reference in the Final Memorandum do not comply as to form with applicable accounting requirements of Regulation S-X and with the published rules and regulations of the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Final Memorandum; or (B) with respect to the period subsequent to June 30, 2004, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt or capital lease obligations of the Company and its subsidiaries or capital stock of the Company or decreases in working capital, total assets or stockholders’ equity of the Company as compared with the amounts shown on the June 30, 2004 consolidated balance sheet included or incorporated by reference in the Final Memorandum, or for the period from July 1, 2004 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total revenues, total income (loss) from operations, net income (loss) from continuing operations or in per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; or (C) the information included under the headings “Summary Historical and Pro Forma Financial Information” and “Selected Financial Information and Unaudited Pro Forma Combined Condensed Financial Statements” is not in conformity with the disclosure requirements of Regulation S-K; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Final Memorandum or incorporated by reference in the Final Memorandum agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. (iv) on the basis of a reading of the unaudited pro forma financial statements (the “pro forma financial statements”) included or incorporated by reference in the Final Memorandum; carrying out certain specified procedures; inquiries of certain officials of the Company and MCC who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that, the pro forma financial statements do not comply as to form with the applicable accounting requirements of Rule 11-02 of Regulation S-X, that the pro forma financial statements include assumptions that do not provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments do not give appropriate effect to those assumptions or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On The Securities shall have been designated as PORTAL-eligible securities in accordance with the ~~Closing Date, (i)~~ rules and regulations of the NASD and the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Initial Purchaser such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (ih) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇~~Worldwide Plaza, ▇▇▇ ~~▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Terra Industries Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ QR Parties contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ QR Parties made in any certificates pursuant to the provisions hereof, to the performance by ~~the Company~~ QR Parties of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Partnership shall have requested and caused ▇~~▇▇▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the ~~Company~~QR Parties, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to ~~each of~~ the ~~Representatives and its counsel~~Representatives, to the effect set forth in Exhibit A hereto. (b) The Partnership shall have requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel for the Partnership to furnish to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit B hereto. (c) The Representatives shall have received from ~~Winston &~~ ▇▇▇▇▇▇▇ &Watkins LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the ~~Company~~ QR Parties shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The ~~Company~~ Issuers shall have furnished to the Representatives a certificate of each of the ~~Company~~QR Parties, signed by (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board, the Chief Executive Officer or the President and (y) the principal financial or accounting officer of the General Partner, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ QR Parties in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the ~~Company~~ QR Parties has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ QR Parties and ~~its~~ their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the ~~Company~~ Partnership shall have requested and caused each of PricewaterhouseCoopers LLP and KPMG LLP to furnish to the ~~Representatives~~ Representatives, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that it is an independent registered public accounting firm with respect to the Partnership within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and the PCAOB and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained in the Disclosure Package and the Final Memorandum; provided that each letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (ef) At the Execution Time and at the Closing Date, the Partnership shall have requested and caused M&L to furnish to the Representatives, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, covering certain matters relating to information about the oil and natural gas reserves of the QR Parties and the Fund presented in the Disclosure Package (with respect to a letter dated as of the Execution Time) or the Final Memorandum (with respect to a letter dated the Closing Date). (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ QR Parties and ~~its subsidiaries,~~ their subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fh) ~~On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the ~~Company's first mortgage bonds or commercial paper~~ Partnership’s 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~~Section 3(a)(62) under the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the ~~Company~~ QR Parties shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the ~~Company~~ Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley~~ ▇~~▇▇▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇▇~~▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇~~▇▇▇~~▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (QR Energy, LP)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company and the Guarantors contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~The Representative shall have received from Dentons US LLP, counsel for the ~~Company~~Company and the Guarantors, ~~shall have furnished to the Representatives~~ its ~~opinion~~opinion and letter, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, in form and substance reasonably satisfactory to ~~each of~~ the ~~Representatives and its counsel~~Representative. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ White & ~~▇▇▇▇▇▇~~Case LLP, counsel for the Initial Purchasers, ~~such~~ an opinion ~~or opinions~~and letter, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, ~~with respect~~ in form satisfactory to the ~~issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related~~ Representative covering such matters as ~~the Representatives may reasonably require, and the Company shall have furnished to~~ are customarily covered in such ~~counsel such documents as they request for the purpose of enabling them to pass upon such matters~~opinions. (c) [RESERVED] (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (de) The Company shall have furnished to the Representative a Chief Financial Officers’ Back-Up Certificate, dated as of the date hereof and as of the Closing Date, executed by the Chief Financial Officer of the Company providing back-up disclosure support as specified therein, in form and substance reasonably satisfactory to the Initial Purchaser. (f) The Company shall have furnished to the Representative certificates evidencing satisfactory evidence of good standing of the Company and the Guarantors in their respective jurisdictions of organization or formation dated as of a recent date prior to the date hereof and (ii) oral confirmation from CT Corporation, to be confirmed in writing, dated the Closing Date or within one business day prior to the Closing Date that each of the Company and the Guarantors is in good standing in their respective jurisdictions of organization or formation, (iii) certificates evidencing qualification by the Company and the Guarantors as a foreign corporation in good standing in each of the jurisdictions in which the Company and the Guarantors have material operations, in each case, issued by the appropriate Governmental Authority in each such jurisdiction as of a recent date prior to the date hereof and (iv) oral confirmation from CT Corporation, to be confirmed in writing, dated the Closing Date or within one business day prior to the Closing Date that each of the Company and the Guarantors is qualified as a foreign corporation in good standing in each of the jurisdictions in which the Company and the Guarantors have material operations. (g) The Representative shall have received fully executed originals of each this Agreement, the Indenture, the Collateral Documents, the Registration Rights Agreement, the Notes and the Guarantees (each of which shall be in full force and effect on terms reasonably satisfactory to the Initial Purchasers), and each opinion, certificate, letter and other document to be delivered in connection with the Offering or any other related transaction. (h) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ Ernst & Young LLP to furnish to the ~~Representatives~~ Representative comfort letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder. (ei) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fj) On The Securities shall be eligible for clearance and settlement through The Depository Trust Company. (k) Subsequent to the Execution Time and prior to the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the ~~Company's first mortgage bonds~~ corporate family or ~~commercial paper~~ corporate credit ratings of the Company by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that term is~~ defined ~~by the Commission~~ for purposes of Rule ~~436(g)(2~~436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (l) Each Guarantor shall have furnished or caused to be furnished to you on the Closing Date certificates of an officer of the Guarantor satisfactory to you as to the accuracy of the representations and warranties of the Guarantor herein at and as of such Closing Date, as to the performance by the Guarantor of, and no its compliance with, all of its obligations hereunder to be performed or complied with at or prior to such ~~securities rating agency~~ Closing Date and as to such other matters as you may reasonably request. (m) The Representative shall have ~~publicly announced that it has under surveillance or review, with possible negative implications, its rating of~~ received a written certificate executed by the ~~Securities or any~~ General Counsel of the Company~~'s other debt securities. (g) On~~ , dated as of the Closing ~~Date~~Date and addressed to the Representative, ~~the Initial Purchasers shall have received the Registration Rights Agreement duly executed~~ in form and ~~delivered~~ substance previously agreed to by the Company and ~~such agreement shall be in full force and effect according to its terms at all times from and after~~ the ~~Closing Date~~Representative. (hn) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (io) ~~If any~~ On the Closing Date, substantially contemporaneously with the issuance of the ~~conditions specified in this Section 6~~ Notes, the Company shall ~~not~~ have ~~been fulfilled in~~ (A) sent an irrevocable notice of redemption to redeem all ~~material respects when and as provided in this Agreement, or if any~~ of the ~~opinions~~ outstanding Existing Notes in accordance with the terms of the indenture governing the Existing Notes (the “Existing Notes Indenture”); (B) irrevocably deposited with the trustee under the Existing Notes Indenture an amount sufficient to redeem all the outstanding Existing Notes on August 9, 2016; and ~~certificates mentioned above~~ (C) shall have taken all other actions as shall be necessary to cause the Existing Notes Indenture to be discharged on the Closing Date in accordance with the terms of the Existing Notes Indenture. (p) The Initial Purchaser shall have received a copy of the receipt of a payoff letter or ~~elsewhere~~ other evidence of termination or retirement for the Senior Secured Term Loan to be permanently repaid with the proceeds of the Notes as set forth in ~~this Agreement shall not be in all material respects reasonably satisfactory~~ the Disclosure Package and the Final Memorandum, in form and substance reasonably satisfactory to the ~~Representatives~~ Initial Purchaser, and ~~counsel for~~ the liens under the security agreements, pledge agreements, mortgages, documents, instruments and other agreements executed in connection with such existing indebtedness will be released upon the making of all filings and taking of such other necessary actions in each applicable jurisdiction. (q) Concurrently with or prior to the issue and sale of the Notes by the Company, the Company shall have entered into the ABL Amendment, in form and substance reasonably satisfactory to the Representative and the Intercreditor Agreement; the Representative shall have received conformed counterparts thereof. (r) (A) The Collateral Agent shall have received on the Closing Date the following, in the form and substance reasonably satisfactory to the Initial Purchasers: (i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, ~~this Agreement and~~ or other similar instruments or documents to be filed under the Uniform Commercial Code of all ~~obligations~~ jurisdictions as may be necessary or, in the reasonable opinion of the ~~Initial Purchasers hereunder may be cancelled at~~Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Documents; (i) appropriately completed copies of Uniform Commercial Code Form UCC 3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any person in any collateral described in any Collateral Documents previously granted by any person; (ii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC 11), or ~~at any time prior to, the Closing Date~~ a similar search report certified by ~~the Representatives. Notice of such cancellation shall be given~~ a party acceptable to the ~~Company in writing or by telephone or facsimile confirmed in writing. The documents required~~ Collateral Agent, dated a date reasonably near to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date., listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Documents, other than such financing statements that evidence Permitted Liens); (iii) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent;

Appears in 1 contract

Sources: Purchase Agreement (Xerium Technologies Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Issuer shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ▇▇▇▇▇▇▇▇ Parties, to furnish to the Initial Purchasers its opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the Representative, in form and substance satisfactory to the Representative, to the effect set forth in Annex A. (b) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇~~▇ &~~ ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston ▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum ~~(as amended or supplemented at the Closing Date)~~ and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The ~~Company~~ Issuer shall have furnished to the ~~Representatives~~ Initial Purchasers a certificate of each of the ~~Company~~▇▇▇▇▇▇▇▇ Parties, signed by (x) the ~~Treasurer of~~ President or Chief Executive Officer and (y) the ~~Company~~Chief Financial Officer, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company and its subsidiaries~~▇▇▇▇▇▇▇▇ Parties, taken as a whole, whether or not arising from transactions in the ordinary course of business. (d) Subsequent to the Execution Time, ~~except as set forth~~ (i) neither the Issuer nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or from any court, regulatory authority or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt or net current assets of the Issuer or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Issuer and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the ~~Company~~ Issuer shall have requested and caused ~~PricewaterhouseCoopers~~ BDO USA, LLP to furnish to the ~~Representatives~~ Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives. (e) Subsequent~~ Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the ~~Execution Time or, if earlier, the dates as of which~~ financial statements and certain financial information ~~is given~~ contained in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company Disclosure Package and ~~its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in~~ the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Memorandum. (f) On At the Execution Time and at the Closing Date, ~~(i)~~ the ~~Securities~~ Issuer shall ~~be rated "A3" by~~ have requested and caused ▇.▇. ▇▇▇ ▇▇▇▇▇'▇ ~~Investors Service, Inc. and "A-" by Standard~~ & ~~Poor's Rating Services, and the Company shall have delivered~~ Co. to furnish to the ~~Representatives evidence~~ Representative, expert letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~ Representative, confirming ~~that~~ certain matters relating to information about the oil and gas reserves of the ▇▇▇▇▇▇▇▇ Parties presented in the Disclosure Package (with respect to a letter dated as of the Execution Time) or the Final Memorandum (with respect to a letter dated the Closing Date). (g) The Securities ~~have such ratings,~~ shall be eligible for clearance and settlement through DTC. (iih) ~~since~~ Subsequent to the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to~~ of the Securities ~~or any of the Company's first mortgage bonds or commercial paper~~ by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that term is~~ defined ~~by the Commission for purposes of Rule 436(g)(2~~in section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the ~~Securities~~ Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the ~~Company's other debt securities~~possible change. (gi) On At the ~~Closing Date~~Execution Time, the Issuer shall have requested and caused ▇▇▇▇ & Associates LLP to furnish to the Representative letters, dated as of the Execution Time, in form and substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers ~~shall have received~~ with respect to the ~~Registration Rights Agreement duly executed~~ financial statements and ~~delivered by~~ certain financial information contained in the ~~Company~~ Disclosure Package and ~~such agreement shall be in full force and effect according to its terms at all times from and after~~ the ~~Closing Date~~Final Memorandum. (hj) At the Execution Time, the Issuer shall have requested and caused ▇▇▇▇ ▇▇▇▇▇ LLP to furnish to the Representative letters, dated as of the Execution Time, in form and substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained in the Disclosure Package and the Final Memorandum. (k) Prior to the Closing Date, the ~~Company~~ ▇▇▇▇▇▇▇▇ Parties shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the ~~Company~~ Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇~~▇▇▇▇ LLP, counsel for the Initial Purchasers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Lonestar Resources US Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form ~~and substance satisfactory to each of the Representatives and its counsel~~set forth in Annex B hereto. (b) The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company and Venoco each shall have requested and caused ~~PricewaterhouseCoopers~~ Ernst & Young LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules. (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇▇▇ to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On The Securities shall have been designated as PORTAL-eligible securities in accordance with the ~~Closing Date, (i)~~ rules and regulations of FINRA and the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the ~~Company's first mortgage bonds~~ debt securities of the Company or ~~commercial paper~~ Venoco by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that term is~~ defined ~~by the Commission~~ for purposes of Rule ~~436(g)(2~~3(a)(62) under the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇~~▇▇▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇▇~~▇▇▇ LLP, counsel for the Initial Purchasers, at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇~~▇▇▇~~▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (DENVER PARENT Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ Issuers contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ Issuers made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished to the Representatives its~~ an opinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, substantially in the form ~~and substance satisfactory to each~~ of ~~the Representatives and its counsel~~Annex A attached hereto. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel for the Issuers, the opinion, dated the Closing Date and addressed to the Representative, substantially in the form of Annex B attached hereto. (c) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and each of the ~~Company~~ Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has carefully examined~~ have reviewed the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of ~~the Company~~ each Issuer in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and ~~the Company~~ each Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in to the condition (financial ~~condition~~or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the ~~Company~~ Issuers shall have requested and caused ~~PricewaterhouseCoopers~~ BDO ▇▇▇▇▇▇▇, LLP to furnish to the ~~Representatives letters~~Representative, a “comfort” letter, dated ~~respectively~~ as of the Execution Time and a bring-down “comfort letter”, dated as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Final Memorandum. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; or (ii) any change, or any development involving a prospective ~~change,~~ change in or affecting the condition (financial ~~condition~~or otherwise), earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On The Securities shall have been designated as PORTAL-eligible securities in accordance with the ~~Closing Date, (i)~~ rules and regulations of the NASD and the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s securities by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that term is~~ defined ~~by the Commission~~ for purposes of Rule ~~436(g)(2~~436(g) under the Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (ij) The Company shall have entered into and delivered to the Representative an amendment to the Revolving Credit Facility in form and substance reasonably satisfactory to the Representative. (k) The Company shall have dissolved United Refining Marketing, Inc, a Delaware corporation and shall have delivered to the Representative a notice of dissolution or equivalent evidence of dissolution from the Delaware Secretary of State, in form and substance reasonably satisfactory to the Representative. (l) The Company shall have caused a notice of redemption to be mailed to the holders of the 10.75% Senior Notes due 2007 and irrevocably deposited an amount equal to such redemption with IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, in each case, concurrently with the closing of the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇~~▇▇ ~~▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Independent Gasoline & Oil Co of Rochester)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy (unless otherwise qualified by materiality herein, in all material respects) of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing Date, to the accuracy (unless otherwise qualified by materiality herein, in all material respects) of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇~~ The Company shall have requested and caused Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special counsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Indenture has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Trustee, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); the Securities have been duly and validly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers under this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); (ii) the statements in the Final Memorandum under the headings "Certain United States Federal Income Tax Considerations", "Supervision and Regulation", "Description of Notes" and "Exchange Offer; Registration Rights", insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, fairly summarize in all material respects such legal matters, agreements, documents or proceeding; (iii) no facts have come to such counsel's attention (provided such counsel need not independently verify, pass upon or assume any responsibility for the accuracy, completeness or fairness of, or otherwise verify, the statements made in the Final Memorandum) which lead such counsel to believe that the Final Memorandum at the Execution Time and on the Closing Date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and related notes thereto and other financial, statistical, reserve and accounting data included therein or omitted therefrom, as to which such counsel need express no opinion); (iv) this Agreement has been duly authorized, executed and delivered by the Company; (v) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Act, and no qualification of an indenture under the Trust Indenture Act, is required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and (vi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum, will not be an "investment company" as defined in the Investment Company Act without taking account of any exemption arising out of the number of holders of the Company's securities. In rendering such opinion, such counsel may limit it to the laws of the State of New York and the federal laws of the United States, and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Memorandum in this Section 6(a) include any amendment or supplement thereto at the Closing Date. (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, ~~in form and substance satisfactory~~ to the effect that: (i) each of the ~~Representatives~~ Company and City National Bank (the "Subsidiary") has been duly incorporated and is validly existing as a corporation or other legal entity in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate or other power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation or other legal entity and is in good standing under the laws of each jurisdiction which requires such qualification, except for such failure to be so qualified or in good standing as would not reasonably be expected to have a Material Adverse Effect, and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; (ii) all the outstanding shares of capital stock of the Company and the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Memorandum, all outstanding shares of capital stock of the Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances; (iii) the Company's authorized equity capitalization is as set forth in the Final Memorandum; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property that is not adequately disclosed in the Final Memorandum, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not reasonably be expected to result in a Material Adverse Effect. (bv) no facts have come to such counsel's attention (provided such counsel need not independently verify, pass upon or assume any responsibility for, the accuracy, completeness or fairness of, or otherwise verify, the statements made in the Final Memorandum) which lead such counsel to believe that the Final Memorandum at the Execution Time and on the Closing Date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and related notes thereto and the other financial, statistical, reserve and accounting data included therein or omitted therefrom, as to which such counsel need express no opinion); (vi) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except such as (i) will be obtained under the Act and the Trust Indenture Act in connection with the transactions contemplated by the Registration Rights Agreement, (ii) may be required under the blue sky or securities laws of any jurisdiction in connection with the transactions contemplated by this Agreement and the Registration Rights Agreement, (iii) the failure of which to obtain would not reasonably be expected to have a Material Adverse Effect or (iv) have already been obtained (as specified in such opinion); and (vii) neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issue and sale of the Securities, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which any of their respective properties is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, any of its subsidiaries or any of their respective properties; except, in the case of clauses (ii) and (iii), for such conflicts, breaches, violations or impositions as would not reasonably be expected to have a Material Adverse Effect. In rendering such opinion, such counsel may limit it to the laws of the State of California and the federal laws of the United States, and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Memorandum in this Section 6(b) include any amendment or supplement thereto at the Closing Date. (c) The Representatives shall have received from ~~Winston~~ Cravath, Swaine & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Treasurer~~ Chief Financial Officer and the General Counsel of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and ~~satisfied~~ satisfied, in all material respects, all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, ~~business~~ prospects or ~~properties~~ earnings of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ KPMG LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives., confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2002 and as at September 30, 2002, and stating in effect that: (ei) ~~Subsequent to~~ in their opinion the ~~Execution Time or, if earlier, the dates as of which information is given~~ audited financial statements included or incorporated in the Final Memorandum ~~(exclusive~~ and reported on by them comply as to form in all material respects with the applicable accounting requirements of ~~any amendment or supplement thereto), there shall not have been (i) any change or decrease specified~~ the Exchange Act and the related rules and regulations adopted by the Commission thereunder that would apply to the Final Memorandum if the Final Memorandum were a prospectus included in a registration statement on Form S-1 under the ~~letter or letters referred to in paragraph (d) of this Section 6; or~~ Act; (ii) ~~any change, or any development involving~~ on the basis of a ~~prospective change~~reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with the standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the nine-month period ended September 30, 2002, and as at September 30, 2002, as indicated in their report included or ~~affecting~~ incorporated in the Final Memorandum; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit, strategy and compensation committees of the Company and the Subsidiary; and inquiries of certain officials of the Company who have responsibility for financial ~~condition, business or properties~~ and accounting matters of the Company and its ~~subsidiaries~~subsidiaries as to transactions and events subsequent to December 31, ~~taken as a whole~~2001, ~~whether~~ nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or ~~not arising from transactions in the ordinary course of business, except as set forth in or contemplated~~ incorporated in the Final Memorandum ~~(exclusive of any amendment or supplement thereto) the effect of which,~~ do not comply in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled form in all material respects ~~when~~ with applicable accounting requirements and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Final Memorandum; (2) with respect to the period subsequent to September 30, 2002, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company or decreases in the shareholders' equity of the Company as ~~provided~~ compared with the amounts shown on the September 30, 2002 consolidated balance sheet included or incorporated in ~~this Agreement~~the Final Memorandum, or if for the period from October 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in income before income taxes, in total or per share amounts of net income of the ~~opinions~~ Company and ~~certificates mentioned above~~ its subsidiaries or ~~elsewhere~~ in ~~this Agreement shall not be~~ net interest income, except in all ~~material respects reasonably satisfactory in form and substance to the Representatives and counsel~~ instances for ~~the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at,~~ changes or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.decreases se

Appears in 1 contract

Sources: Purchase Agreement (City National Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at as of the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, ~~shall~~ to have furnished to the Representatives ~~its opinion~~their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, in a form ~~and substance~~ reasonably satisfactory to ~~each of~~ the ~~Representatives and its counsel~~Representatives. (b) The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion ~~or opinions~~and negative assurance letter, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Treasurer~~ Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Disclosure Package and the Final ~~Memorandum,~~ Memorandum and any amendment or supplement ~~to the Final Memorandum~~ thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing ~~Date,~~ Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business~~, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)~~. (d) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives~~ letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (f) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On Prior to the ~~Closing Date~~Execution Time, the ~~Initial Purchasers~~ Company shall have ~~received~~ furnished to the ~~Registration Rights Agreement duly executed~~ Representatives a letter substantially in the form of Exhibit A hereto from each officer and ~~delivered by~~ director of the Company addressed to the Representatives, and such ~~agreement~~ letters shall be in full force and ~~effect according to its terms at all times from and after the Closing Date~~effect. (h) The Company shall have caused the Conversion Shares to be approved for listing, subject only to official notice of issuance, on the New York Stock Exchange. (i) The Capped Call Confirmations, when executed and delivered by the Company, shall be in full force and effect, and the Company shall not be in breach or default thereunder. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 ~~will~~ shall be delivered at the office of ~~counsel for the Company, at Sidley~~ ▇~~▇▇▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇▇~~▇▇▇ ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~LLP, ▇▇counsel for the Initial Purchasers, at 1271 Avenue of the Americas; ▇▇▇ ▇▇▇▇, ~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇~~▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Stem, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ ~~& ▇▇▇▇~~LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the ~~Representatives~~ Representative its opinion, dated the Closing Date and addressed to the ~~Representatives~~Representative, substantially in the form of Exhibit B-1, as well as a Rule 10b-5 letter, substantially in the form of Exhibit B-2. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida, the State of New York or the federal laws of the United States, to the extent they deem proper and ~~substance~~ specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to ~~each~~ counsel for the Initial Purchasers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the ~~Representatives~~ Company and ~~its counsel~~public officials. References to the Disclosure Package, the Preliminary Memorandum and the Final Memorandum in this Section 6(a), Exhibit B-▇, ▇▇▇▇▇▇▇ ▇-▇, and Exhibit B-3 include any amendment or supplement thereto at the Closing Date. (b) The Company shall have requested and caused M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, special intellectual property counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, substantially in the form of Exhibit B-3. (c) The Representatives shall have received from ~~Winston~~ L▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused K▇▇▇▇▇▇▇▇ & K▇▇▇▇▇▇▇▇, a member of PricewaterhouseCoopers ~~LLP~~ International Limited, to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representatives and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion, the audited financial statements and financial statement schedules included or incorporated by reference in the Preliminary Memorandum and the Final Memorandum and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Preliminary Memorandum and the Final Memorandum, including the information set forth under the captions “The Offering,” “Summary Consolidated Financial Data,” “Risk Factors,” and “Capitalization” in the Preliminary Memorandum and the Final Memorandum, the information incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Preliminary Memorandum and the Final Memorandum, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(d) to the Preliminary Memorandum and the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On Prior to the ~~Closing Date~~Execution Time, ~~(i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and~~ the Company shall have ~~delivered~~ furnished to the Representatives ~~evidence satisfactory~~ a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing DateRepresentatives. (h) The Company shall have caused the shares of Common Stock initially issuable upon conversion of the Securities to be approved for listing, subject to issuance, on The NYSE MKT. (i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Initial Purchasers, at ~~Sidley~~ 1▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇~~▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Protalix BioTherapeutics, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇~~ The Company shall have requested and caused Shearman & ~~▇▇▇▇~~Sterling LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its ~~opinion~~opinion and letter, dated the Closing Date and addressed to the Representatives, to the effect set forth in ~~form~~ Exhibits A and ~~substance satisfactory to each of the Representatives and its counsel.~~B. (b) The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage, the Registration Rights Agreement, the~~ Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling ~~them~~ it to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Treasurer~~ chief financial officer of the Company, dated the Closing Date, to the effect that ~~the signer of~~ such ~~certificate~~ officer has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum ~~and this Agreement and~~ and, to the knowledge of such officer, that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the business, financial ~~condition, business~~ condition or ~~properties~~ results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At The Initial Purchasers shall have received on the ~~Execution Time~~ date hereof and at on the Closing ~~Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters~~Date a letter, dated ~~respectively as of~~ the ~~Execution Time~~ date hereof and ~~as of~~ the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives~~Initial Purchasers, from PricewaterhouseCoopers LLC, 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 contained in or incorporated by reference into the Final Memorandum, and such letter shall use a “cut-off date” not earlier than the date hereof. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change in the capital stock (excluding the Securities), or ~~decrease specified~~ long-term debt of the Company or any of its subsidiaries with respect to the period subsequent to September 30, 2005 other than as set forth in the letter ~~or letters~~ dated the date hereof referred to in ~~paragraph (d~~Section 6(e) ~~of this Section 6~~hereof; or (ii) any ~~change, or any development involving a prospective change,~~ change in or affecting the business, financial ~~condition, business~~ conditions or ~~properties~~ results of operations of the Company and its subsidiaries, taken as a ~~whole, whether or not arising from transactions in the ordinary course of business,~~ whole except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the ~~sole~~ absolute judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On Subsequent to the ~~Closing Date~~Execution Time, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s 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~~436(g) under the Act~~, and~~ ) or (ii) no such ~~securities rating agency~~ organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with ~~possible negative implications~~respect to, its rating of the Securities or of any ~~of the Company's~~ other debt ~~securities~~securities or preferred stock issued or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading). (g) The Securities shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD, and the Securities shall be eligible for clearance and settlement through The Depositary Trust Company. (h) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company. (i) On or prior to the Closing Date, the ~~Initial Purchasers~~ Company shall have ~~received~~ caused the ~~Registration Rights Agreement duly executed~~ Certificate of Designations to be filed with the Commission and ~~delivered by~~ the ~~Company and such agreement shall be~~ Secretary of State of the State of Delaware in ~~full force and effect according to its terms at all times from and after the Closing Date~~a timely manner. (hj) ~~Prior~~ On or prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (ik) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from each of the directors and executive officers of the Company identified in Exhibit D hereto addressed to the Representatives. (l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit E hereto from each of the directors and executive officers of the Company identified in Exhibit F hereto addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, ~~at Sidley ▇~~▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇~~ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, prior to 9 A.M. on the Closing Date and any Settlement Date.

Appears in 1 contract

Sources: Purchase Agreement (Blockbuster Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein at the Execution Time and the Closing ~~Date~~Date (except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct as of such earlier date)), to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇~~▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~L.L.P., counsel for the ~~Company~~Company and the Guarantors, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in ~~form~~ good standing under the laws of the State of Delaware, with full corporate power and ~~substance satisfactory~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum; (ii) the Securities conform in all material respects to the description thereof contained in the Final Memorandum; (iii) the Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (except as that enforceability may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect, general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and any implied covenants of good faith and fair dealing); the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute legal, valid, binding and enforceable obligations of the Company and (subject to the assumptions stated in such opinion) each of the ~~Representatives~~ Guarantors entitled to the benefits of the Indenture (except as that enforceability may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect, general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and any implied covenants of good faith and fair dealing); the Exchange Securities have been duly authorized by the Company and, when issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to the holders of the Securities in exchange therefor as contemplated by the Registration Rights Agreement, will constitute legal, valid, binding and enforceable obligations of the Company and (subject to the assumptions stated in such opinion) each of the Guarantors entitled to the benefits of the Indenture (except as that enforceability may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect, general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and any implied covenants of good faith and fair dealing); the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Initial Purchasers, constitutes the legal, valid, binding and enforceable instrument of the Company (except as that enforceability may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect, general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law) and any implied covenants of good faith and fair dealing) provided that no opinion is expressed with respect to Sections 6 and 8 thereof; and the statements set forth under the headings “Description of the Notes” and “Exchange Offer; Registration Rights” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indenture and the Registration Rights Agreement, provide a fair summary in all material respects of such provisions; (iv) such counsel does not know of (a) any pending or threatened legal or governmental proceedings with respect to the Company that, in such counsel’s judgment, are of a character that would be required to be disclosed in a prospectus if the Company were to file a Form S-1 registration statement under the Act and that are not disclosed in the Final Memorandum (or any amendment or supplement thereto) or (b) any agreement, contract, indenture, lease or other instrument that, in such counsel’s judgment, are of a character that would be required to be described or referred to in a prospectus if the Company were to file a Form S-1 registration statement under the Act and that are not disclosed in the Final Memorandum (or any amendment or supplement thereto); (v) the statements in the Final Memorandum under the headings “Description of Other Indebtedness,” and “Certain United States Federal Income Tax Considerations” fairly summarize the matters therein described; (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) no consent, approval, or authorization of, or filing with, any United States, Texas, Delaware or New York court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except such as may be required under the blue sky or securities laws of any jurisdiction in which the Securities are offered or sold (as to which such counsel need express no opinion beyond that set forth in paragraph (ix) below), and except such as may be required by federal and state securities laws with respect to the transactions contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained; and to the knowledge of such counsel, no order of any United States, Texas, Delaware or New York court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except such as may be required under the blue sky or securities laws of any jurisdiction in which the Securities are offered or sold (as to which such counsel need express no opinion beyond that set forth in paragraph (ix) below), and except such as may be required by federal and state securities laws with respect to the transactions contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained; (viii) neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issuance and sale of the Securities or the Exchange Securities, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof will conflict with or result in a breach or violation: (i) the charter or by-laws of the Company; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject and which has been filed as an exhibit to the Company’s Form 10-K filed with the Commission for the fiscal year ended December 31, 2003; (iii) any statute, law, rule or regulation applicable to the Company of any governmental body, agency or court having jurisdiction over the Company or any of its properties; or (iv) any judgment, order or decree, of which such counsel is aware, applicable to the Company of any governmental body, agency or court having jurisdiction over the Company or any of its properties; except in the case of clause (iii) or (iv), for any such breach or violation as would not reasonably be expected to have a Material Adverse Effect; (ix) assuming the accuracy of the representations and warranties made in or pursuant to this Agreement and compliance by the Company and each Initial Purchaser with the agreements contained herein (without regard to the representation of the Company set forth in Section 1(e)), compliance by each Initial Purchaser with the offering and transfer procedures described in the Final Memorandum, the accuracy of the representations and warranties made in accordance with the Final Memorandum by the investors to whom you initially resell securities and receipt by the investors to whom you initially sell securities of copies of the Final Memorandum prior to the effectiveness of such resale, no registration under the Act, and no qualification of the Indenture under the Trust Indenture Act, is required for the sale and delivery of the Securities by the Company and the Guarantors to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities in the manner contemplated herein and in the Final Memorandum, it being understood that no opinion is expressed in this paragraph as to any subsequent resale of any security or as to the Exchange Securities; and (x) the Company and the Guarantors are not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum, will not be an “investment company” as defined in the Investment Company Act, without taking account of any exemption arising out of the number of holders of the Company’s or the Guarantors’ securities. Such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, your representatives and your counsel at which conferences the contents of the Final Memorandum and related matters were discussed, and although they did not independently verify the information in the Final Memorandum and are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent set forth in paragraphs (iii) and (v) above), such counsel shall advise you that, on the basis of the foregoing (relying as to materiality to a large extent upon officers and other representatives of the Company), no facts have come to such counsel’s attention which lead such counsel to believe that the Final Memorandum, as of the date hereof or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, the notes thereto and the auditors’ report thereon, and the other accounting and financial data included therein or omitted therefrom, as to which such counsel need express no opinion). In giving the foregoing opinions, such counsel may rely on certificates of representatives of the Company and the Guarantors and of public officials, as well as the representations and warranties contained in this Agreement, with respect to the accuracy of the factual matters contained therein, and may state that the opinions assume the genuineness of all signatures, the conformity to authentic, original documents of all documents submitted to such counsel as certified or photostatic copies and the authenticity of all documents submitted to such counsel as originals. In the opinions set forth above, such counsel may state that with respect to paragraphs (iv), (vii) and (viii), phrases such as “to the knowledge of such counsel,” “known to such counsel,” “of which such counsel is aware” and those with equivalent wording refer to the conscious awareness of information by the lawyers of such counsel’s law firm who have prepared the opinion, signed the letter or been actively involved in assisting and advising the Company in connection with the preparation of the Final Memorandum and the execution and delivery of this Agreement without any independent investigation. In giving the foregoing opinions, such counsel may further state that, except where otherwise expressly stated, the opinions expressed are based on and are limited to the laws of the State of Texas, the General Corporation Law of the State of Delaware, and the laws of the State of New York, in each case as currently in effect. References to the Final Memorandum in this Section 6(a) include any amendment or supplement thereto at the Closing Date. (b) The ~~Representatives~~ Company shall have ~~received from Winston & ▇▇▇▇▇▇~~requested and caused the Vice President, ~~counsel for~~ General Counsel and Corporate Secretary of the ~~Initial Purchasers, such opinion or opinions~~Company to furnish to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer of the Company, dated the Closing Date, to the effect ~~that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and~~ that: (i) each of Guarantors has been duly incorporated or formed and is validly existing as a corporation, limited liability company or partnership in good standing under the ~~representations~~ laws of the jurisdiction in which it is chartered or organized, with full power and ~~warranties~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and each of the Company and the Guarantors is duly qualified to do business and is in ~~this Agreement are true and correct in all material respects on and as~~ good standing under the laws of the ~~Closing Date with~~ jurisdictions set forth opposite the ~~same effect as if made on the Closing Date,~~ Company’s and ~~the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and~~such Guarantor’s name in Exhibit B; (ii) ~~since~~ all the ~~date~~ outstanding shares of ~~the most recent financial statements included in the Final Memorandum (exclusive of any amendment~~ capital stock or ~~supplement thereto), there has been no material adverse change in the financial condition, business or properties~~ ownership interests of the Company and ~~its subsidiaries~~each of the Guarantors have been duly authorized and validly issued and are fully paid and nonassessable, ~~taken as a whole, whether or not arising from transactions in the ordinary course of business~~and, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given otherwise disclosed in the Final ~~Memorandum (exclusive~~ Memorandum, all outstanding shares of capital stock or ownership interests of the Guarantors are owned by the Company either directly or through wholly owned subsidiaries free and clear of any ~~amendment~~ perfected security interest and, to the knowledge of such counsel, any other security interest, claim, lien or ~~supplement thereto)~~encumbrance, ~~there shall not have been~~ except any security interests, claims, liens and encumbrances created by or under, or relating to, that certain credit agreement, dated as of March 12, 2004, by and among the Company, Citicorp North America, Inc., as Administrative Agent, and the several banks and other financial institutions or entities from time to time thereto and except any liens with respect to the payment of taxes, assessments or governmental charges in each case (i) ~~any change~~ that are not yet due or ~~decrease specified~~ that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the ~~letter or letters referred to in paragraph (d) of this Section 6;~~ extent required by generally accepted accounting principles or (ii) in respect of which the aggregate liability of such entity does not exceed $250,000 at any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum time; (~~exclusive of any amendment or supplement thereto~~iii) the ~~effect of which~~Indenture has been duly authorized, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by each of the ~~Company~~ Guarantors and, assuming due authorization, execution and ~~such agreement shall be~~ delivery thereof by the Trustee, constitutes a legal, valid and binding instrument enforceable against each of the Guarantors in ~~full force and effect according to~~ accordance with its terms (except as that enforceability may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect, general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at ~~all times from~~ law) and ~~after~~ any implied covenants of good faith and fair dealing); the ~~Closing Date. (h) Prior to the Closing Date, the Company shall~~ Securities have ~~furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any~~ been duly authorized by each of the ~~conditions specified~~ Guarantors and, when executed and authenticated in ~~this Section 6 shall not have been fulfilled~~ accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in ~~all material respects when and as provided in~~ accordance with the terms of this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.w

Appears in 1 contract

Sources: Purchase Agreement (Us Concrete Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ Issuers contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ Issuers made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Issuers shall have requested and caused (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, to furnish to the Representative its opinion and negative assurance letter, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇~~▇ & ▇▇~~▇▇, general counsel for the ~~Company~~Issuers, ~~shall have furnished~~ to furnish to the ~~Representatives its~~ Representative her opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, in form and substance reasonably satisfactory to ~~each of~~ the ~~Representatives and its counsel~~Initial Purchasers. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion ~~or opinions~~and negative assurance letter, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The ~~Company~~ Managing General Partner shall have furnished to the ~~Representatives~~ Representative a certificate of the ~~Company~~Managing General Partner, signed by (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board or the President and (y) the principal financial or accounting officer of the Managing General Partner, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Issuers in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the ~~Company has~~ Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the ~~Company~~ Issuers shall have requested and caused ~~PricewaterhouseCoopers~~ (i) Ernst & Young LLP to furnish to the ~~Representatives letters,~~ Representative a “comfort letter,” dated ~~respectively~~ as of the Execution ~~Time~~ Time, and a bring down comfort letter, dated as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of the Partnership and its consolidated subsidiaries contained in or incorporated by reference in the Disclosure Package and Final Memorandum, including any amendment or supplement thereto as of the date of the applicable letter and (ii) Deloitte & Touche LLP to furnish to the Representative a “comfort letter,” dated as of the Execution Time, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of Ciner Wyoming contained in or incorporated by reference in the Disclosure Package and Final Memorandum, including any amendment or supplement thereto as of the date of the applicable letter. All references in this Section 6(d) to the Preliminary Memorandum and the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the ~~Company~~ Partnership and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (f) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the ~~Company~~ Issuers shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (ih) At the Closing Date, the Issuers and the Trustee shall have entered into the Indenture and the Representative shall have received an executed copy thereof. If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the ~~Company~~ Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇~~▇▇ ~~▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Natural Resource Partners Lp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing Date (as though made on such Closing Date) and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, ~~shall have furnished~~ to furnish to the ~~Representatives~~ Representative its opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, ~~in form and substance satisfactory~~ to ~~each~~ the effect of the ~~Representatives and its counsel~~substantive paragraphs set forth on Annex B hereto. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have furnished to the Representative a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative. (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused each of BDO ▇▇▇▇▇▇▇, LLP, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and PricewaterhouseCoopers AG to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representative. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On Subsequent to the Execution Time and prior to the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a ~~downgrading~~ possible change that does not indicate the direction of the possible change, in the rating ~~assigned to~~ accorded any of the ~~Securities~~ debt securities of the Company or any of ~~the Company's first mortgage bonds or commercial paper~~ its subsidiaries by any "“nationally recognized statistical rating ~~agency",~~ organization,” as ~~that~~ such term is defined ~~by the Commission for purposes of Rule 436(g)(2~~in Section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing DateExchange Act. (h) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. (i) Prior to the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A-1 hereto from the executive officers and directors of the Company set forth on Annex A and in the form of Exhibit A-2 from Warburg Pincus Private Equity VIII, L.P., Warburg Pincus Netherlands Private Equity VII, C.V.I., WP-WPVIII Investors, L.P., Warburg Pincus Private Equity X, L.P., and Warburg Pincus X Partners, L.P., in each case addressed to the Initial Purchasers. (j) The Company shall have caused the shares of Common Stock initially issuable upon conversion of the Securities to be approved for listing, subject to issuance, on the Nasdaq Global Select Market. (k) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇~~▇▇▇ ▇~~▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Nuance Communications, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the ~~Securities~~ Notes shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the ~~Execution~~ Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇~~The Representatives shall have received from Norton ▇▇▇▇ ▇▇▇▇~~▇ &~~ ▇▇▇▇▇, U.S. counsel for the Company, ~~shall have furnished~~ such opinion or opinions, in form and substance reasonably satisfactory to the ~~Representatives its opinion~~Representatives, dated the Closing Date and addressed to the Representatives, ~~in form~~ and ~~substance satisfactory~~ the Company shall have furnished to ~~each~~ such counsel such documents as they request for the purpose of ~~the Representatives and its counsel~~enabling them to pass upon such matters. (b) The Representatives shall have received from ~~Winston~~ King & ~~▇▇▇▇▇▇~~Wood Mallesons, PRC counsel for the ~~Initial Purchasers~~Company and the Subsidiaries incorporated in the PRC, such opinion or opinions, to the effect as substantially set forth in Exhibit A, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably requireCompany, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Representatives shall have received from Shearman & Sterling, U.S. counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Representatives shall have received from JunHe, PRC counsel for the Initial Purchasers, such opinion or opinions, to the effect as substantially set forth in Exhibit B, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ (Cayman) Limited, the Cayman Islands counsel for the Company, such opinion or opinions, to the effect as substantially set forth in Exhibit C, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received from Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Hong Kong counsel for the Company, such opinion or opinions, in form and substance reasonably satisfactory to the Representatives, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) On or prior to the Closing Date, the Company shall have entered into a fee letter with each Initial Purchaser, which shall set forth, among other things, the amount of such Initial Purchaser’s share of the Combined Commission. (h) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Treasurer~~ Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Disclosure Package and the Final Memorandum, any ~~amendment~~ supplements or ~~supplement to the Final Memorandum~~ amendments thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and~~; (ii) since the date of the most recent financial statements included in the Disclosure Package and the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no material adverse change in the general affairs, management, business, financial condition, ~~business~~ shareholders’ equity, results of operations or ~~properties~~ prospects of the Company and ~~its subsidiaries~~the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business~~, except~~ ; and (iii) the information circled in Schedule I thereto as ~~set forth~~ it appears in ~~or contemplated by~~ the Disclosure Package and the Final Memorandum ~~(exclusive~~ is derived from, or calculated on the basis of ~~any amendment or supplement thereto)~~information derived from, the business records and/or financial accounts of the Company and is true and accurate. (di) [Reserved] (j) The Company shall have provided to the Initial Purchasers approvals from its board of directors approving the issuance of the Notes. (k) [Reserved] (l) At ~~the Execution Time and at~~ the Closing Date, the ~~Company~~ Notes shall have ~~requested and caused PricewaterhouseCoopers LLP~~ received approval for listing on the SEHK, subject only to ~~furnish~~ official notice of issuance. (m) Announcements to the ~~Representatives letters, dated respectively as~~ shareholders of the ~~Execution Time and as~~ Company in connection with the offering of the ~~Closing Date~~Notes shall have been published in accordance with the Rules Governing the Listing of Notes on the SEHK. (n) The Indenture and the Notes shall have been duly executed and delivered and shall be in full force and effect, ~~in form~~ and ~~substance satisfactory~~ true and complete copies thereof shall have been delivered to the Representatives. (eo) ~~Subsequent~~ The Company shall have provided the Initial Purchasers with such other certificates, letters and documents relating to the ~~Execution Time or, if earlier,~~ transactions contemplated hereby as the ~~dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not~~ Initial Purchasers may have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as reasonably set forth in ~~or contemplated in~~ the ~~Final Memorandum (exclusive~~ memorandum of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after closing dated the Closing Date. (hp) ~~Prior to~~ The Representatives shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, ~~the Company shall have furnished to the Representatives such further information, certificates and documents~~ as the ~~Representatives~~ case may ~~reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement~~be, ~~or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory~~ in form and substance reasonably satisfactory to the ~~Representatives~~ Representatives, from Ernst & Young, containing statements and ~~counsel for the Initial Purchasers, this Agreement and all obligations~~ information of the ~~Initial Purchasers hereunder may be cancelled at, or at any time prior to,~~ type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained in the Disclosure Package and the Final Memorandum; provided that the letter delivered on the date hereof and the Closing Date by shall use a “cut-off date” not earlier than the ~~Representatives. Notice of such cancellation shall be given~~ date that is three Business Days prior to the ~~Company in writing~~ date hereof or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date, as applicable. “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City, London or Hong Kong.

Appears in 1 contract

Sources: Purchase Agreement

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution ~~Time~~ Time"), and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the opinion of Morr▇▇▇▇ & ▇oer▇▇▇▇ ▇▇▇, counsel to the Company, dated as of the Closing Date, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, to the effect that: (1) The Company has been duly incorporated and is validly existing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Final Memorandum and to enter into and perform its obligations under this Agreement and each of the other Transaction Documents; to the best knowledge of such counsel the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; (2) The authorized, issued and outstanding capital stock of the Company is as set forth in the Final Memorandum under the caption "Description of Capital Stock"; (3) Each of the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Memorandum and to the best knowledge of such counsel is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing individually or in the aggregate would not result in a Material Adverse Effect; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and non-assessable and, to such counsel's knowledge and information, except as set forth in the Final Memorandum under the caption "Business-- Verio Group Network," is owned by the Company directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; (4) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Securities, the Exchange Notes, the Private Exchange Notes, the Indenture and the Registration ~~Rights~~ Agreement; and each of this Agreement, the Securities, the Exchange Notes, the Private Exchange Notes, the Indenture and the Registration Agreement has been duly authorized by the Company; (5) No consent, waiver, approval, authorization, license, qualification or order of or filing or registration with any court or governmental or regulatory agency or body is required for the execution and delivery by the Company of this Agreement, the Indenture and the Registration Agreement or for the issue and sale of the Securities, the Exchange Notes or the Private Exchange Notes, if any, or the performance by the Company of its obligations under the Transaction Documents, or for the consummation of any of the transactions contemplated hereby or thereby, except such as may be required (A) in connection with the registration under the Securities Act of the Exchange Notes or the Private Exchange Notes, if any, under the Registration Agreement, (B) in order to qualify the Indenture under the Trust Indenture Act and (C) by state securities or "blue sky" laws in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion); (6) The issuance, sale and delivery of the Securities, the Exchange Notes and the Private Exchange Notes, if any, the execution, delivery and performance by the Company of this Agreement, the Indenture and the Registration Agreement (in each case assuming due authorization and execution by each party other than the Company), and the consummation by the Company of the transactions contemplated hereby and thereby and the compliance by the Company with the terms of the foregoing do not, and, at the Closing Date, will not, conflict with or constitute or result in a breach or violation by the Company or any of the Subsidiaries of (A) any provision of the Certificate of Incorporation or By-laws of the Company, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Company, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under any Material Contract identified in Schedule III hereto or (C) any law, statute, rule, or regulation or any order, decree or judgment known to such counsel to be applicable to the Company or any Subsidiary, of any court or governmental or regulatory agency or body or arbitrator known to such counsel to have jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or assets; (7) The Purchase Agreement has been duly authorized, executed and delivered by the Company; (8) The statements in the Offering Memorandum under the headings "Summary - The Offering," "Description of Capital Stock," "Description of the 1997 Notes," "Description of the Notes," "Exchange Offer; Registration Rights" and "Certain Transactions," insofar as such statements purport to summarize certain provisions of the Securities, the Exchange Notes, the Indenture, the Registration Agreement, the Company's authorized and outstanding capital stock and the Company's 13-1/2% Senior Notes due 2004, provide a fair summary of such provisions of such agreements and instruments; (9) The statements in the Offering Memorandum under the caption "Certain Federal Income Tax Considerations" fairly and accurately summarize the material United States federal tax consequences of owning the Securities; (10) Each of the Indenture and the Registration Agreement has been duly authorized, executed and delivered by the Company and (assuming due authorization and execution by each party thereto other than the Company) constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such ~~agreement shall~~ enforceability may be limited by (a) with respect to the Indenture and the Registration Agreement, the Enforceability Limitations, including the waiver contained in ~~full force~~ Section 5.15 of the Indenture, and ~~effect according~~ (b) with respect to the Registration Agreement, as to rights of indemnification and contribution, principles of public policy or federal or state securities laws relating thereto; (11) Each of the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Notes and the Private Exchange Notes, if any, when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations; (12) To the knowledge of such counsel, other than as described in the Final Memorandum, no legal, regulatory or governmental proceedings are pending to which the Company is a party or to which the property or assets of the Company are subject which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or which, individually or in the aggregate, could have a material adverse effect on the power or ability of the Company to perform its obligations under the Transaction Documents or to consummate the transactions contemplated thereby or by the Offering Memorandum and to the knowledge of such counsel, no such material proceedings have been threatened against the Company or with respect to any of its respective assets or properties; (13) Assuming (a) the accuracy of, and compliance with, the representations, warranties and covenants of the Company in subsections 1(c) and 1(d) of the Purchase Agreement, (b) the accuracy of, and compliance with, the representations, warranties and covenants of the Initial Purchasers in Section 4 of the Purchase Agreement, (c) the compliance by the Initial Purchasers with the offering and transfer procedures and restrictions described in the Final Memorandum and (d) receipt by the purchasers to whom the Initial Purchasers initially resell the Securities of a copy of the Final Memorandum prior to such sale, it is not necessary in connection with the offer, sale and delivery of the Securities or in connection with the initial resale of such Securities in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act, it being understood that no opinion is expressed as to any subsequent resale of any Securities; (14) When the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of the Company which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system; and (15) Neither the consummation of the transactions contemplated hereby nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. In addition, such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Company and representatives of the independent certified accountants of the Company, at ~~all times from~~ which conferences the contents of the Preliminary Memorandum and ~~after~~ Final Memorandum and the business and affairs of the Company and the Subsidiaries were discussed, and although such counsel has not independently verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except and only to the extent set forth in subclauses (8) and (9) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deemed appropriate upon the representations and opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Final Memorandum at the date thereof or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial or statistical data set forth or referred to in the Final Memorandum). In rendering such opinions, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal law of the United States, the General Corporation Law of the State of Delaware and the laws of the State of New York and (B) may rely, as to matters of fact, to the extent they deem proper on representations or certificates of responsible officers of the Company and certificates of public officials. References to the Final Memorandum in this subsection (a)(i) include any supplements thereto at or prior to the Closing Date. (hii) ~~Prior to~~ At the Closing Date, the ~~Company~~ Initial Purchasers shall have ~~furnished to~~ received the ~~Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any~~ opinion of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇Carl▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇~~▇ ▇▇▇▇▇~~▇, ▇▇~~▇▇▇ ▇▇▇▇~~q., ~~▇▇▇▇▇▇▇~~General Counsel to the Company, ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~dated as of the Closing Date, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, to the effect that: (1) To the knowledge of such counsel, other than as described in the Final Memorandum, no legal, regulatory or governmental proceedings are pending to which any of the Subsidiaries is a party or to which the property or assets of the Subsidiaries are subject which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or which, individually or in the aggregate, could have a material adverse effect on the power or ability of the Company to perform its obligations under the Transaction Documents or to consummate the transactions contemplated thereby or by the Final Memorandum and to the knowledge of such counsel, no such material proceedings have been threatened against the Subsidiaries or with respect to any of their respective assets or properties; and (2) None of the Company or the Subsidiaries is in violation of its respective Organizational Documents; to the knowledge of such counsel, no default by the Company or any of the Subsidiaries exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Material Contract which could reasonably be expected to have a Material Adverse Effect; and to the knowledge of such counsel, none of the Company nor the Subsidiaries is in breach or violation of any law, statute, rule or regulation, or any judgment, decree or order of any governmental or regulatory agency or other body having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or assets such that any such breach or violation could reasonably be expected to have a Material Adverse Effect. In addition, such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Company and representatives of the independent certified accountants of the Company, at which conferences the contents of the Preliminary Memorandum and Final Memorandum and the business and affairs of the Company and the Subsidiaries were discussed, and although such counsel has not independently verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum, on the basis of the foregoing (relying as to materiality to the extent such counsel deemed appropriate upon the representations and opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Final Memorandum at the date thereof or as of the Closing Date., contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial or statistical data set forth or referred to in the Final Memorandum). In rendering such opinions, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal law of the United States, the General Corporation Law of the State of Del

Appears in 1 contract

Sources: Purchase Agreement (Verio Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Time of Sale, the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Company shall have requested and caused Sidley ~~▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~Austin LLP, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives ~~its opinion~~an opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, to the effect set forth in ~~form and substance satisfactory to each of the Representatives and its counsel.~~Annex B. (b) The Representatives shall have received from ~~Winston &~~ Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Initial Purchasers, ~~such~~ an opinion ~~or opinions~~and disclosure letter, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chief Executive Officer and President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that: (i) ~~the~~ all representations and warranties of the Company ~~in this Agreement are true and correct in all material respects on~~ herein are, at and as of the Closing ~~Date~~ Date, true and correct (i) in the case of representations and warranties which are qualified as to materiality, with the same effect as if made on the Closing ~~Date~~Date and (ii) in the case of representations and warranties that are not so qualified, in all material respects, and that the Company ~~has complied with~~ shall have performed all ~~the agreements and satisfied all the conditions on~~ of its ~~part~~ obligations hereunder to be performed ~~or satisfied hereunder~~ at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change or effect, or any development involving a prospective material adverse change or effect, in or affecting the business, properties, general affairs, management, financial ~~condition~~position, ~~business~~ stockholders’ equity or ~~properties~~ results of operations of the Company and its subsidiaries, taken as a whole, ~~whether or not arising from transactions in the ordinary course of business,~~ except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ KPMG LLP to furnish to the Representatives letters, dated respectively as of the ~~Execution Time~~ date of this Agreement and as of the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained or incorporated by reference in the Preliminary Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. All references in this Section 6(d) to the Preliminary Memorandum and the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (e) The Representatives shall have received, at the Execution Time and the Closing Date, a certificate of the Chief Financial Officer of the Company dated respectively as of the Execution Time or the Closing Date, as applicable, in form and substance satisfactory to the Representatives and in substantially the form attached hereto as Annex C, stating, as of such date, the conclusions and findings of such individual, in his or her capacity as Chief Financial Officer of the Company, with respect to the financial information and such other matters as reasonably requested by the Representatives. (ef) The Representatives shall have received, on and as of the Closing Date, reasonably satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions of organization (to the extent that such concept is applicable), in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions, provided that the evidence of good standing for those entities except for the Company may be as of any date reasonably satisfactory to the Representatives, through and including the Closing Date. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fh) ~~On the Closing Date,~~ The Securities shall be eligible for clearance and settlement through The Depository Trust Company. (i) ~~the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to~~ of any of the ~~Securities~~ debt securities of the Company or any of ~~the Company's first mortgage bonds or commercial paper~~ its subsidiaries by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that term is~~ defined ~~by the Commission~~ for purposes of Rule ~~436(g)(2~~3(a)(62) under the Exchange Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Jackson Financial Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, ~~in form and substance satisfactory~~ to ~~each~~ the effect of the ~~Representatives and its counsel~~substantive paragraphs set forth on Annex B hereto. (b) The Representatives shall have received from ~~Winston~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated the Closing Date, stating that to the knowledge of such officer, the interim financial statements of each of Former Nuance Communications, Inc and Voice Signal Technologies, Inc., the only entities (other than the Company) for which interim financial statements are included or incorporated by reference in the Disclosure Package and the Final Memorandum, have been reviewed by accountants who performed the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100, Interim Financial Information. (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ BDO S▇▇▇▇▇▇, LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representatives and, in the case of the letter dated as of the Execution Time, substantially in the form of Annex C hereto. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On The Securities shall have been designated as PORTAL-eligible securities in accordance with the ~~Closing Date, (i)~~ rules and regulations of the NASD and the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service~~eligible for clearance and settlement through The Depository Trust Company. (h) Prior to the Execution Time, ~~Inc. and "A-" by Standard & Poor's Rating Services, and~~ the Company shall have ~~delivered~~ furnished to the Representatives ~~evidence satisfactory~~ a letter substantially in the form of Exhibit A hereto from the executive officers and directors of the Company set forth on Annex A and Warburg Pincus Private Equity VIII, L.P., Warburg Pincus & Co., Warburg Pincus LLC and Warburg Pincus Partners LLC addressed to the ~~Representatives confirming that the Securities have such ratings, and~~ Representatives. (iii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency The Company shall have ~~publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ caused the shares of Common Stock initially issuable upon conversion of the Securities ~~or any of~~ to be approved for listing, subject to issuance, on the ~~Company's other debt securities~~Nasdaq Global Select Market. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (hj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇▇~~4▇▇ ▇~~▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Nuance Communications, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~The Company shall have requested and caused Greenberg Traurig, P.A., counsel for the Company, ~~shall have furnished~~ to furnish to the ~~Representatives~~ Re▇▇▇▇▇▇▇▇▇ives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company and each of its Subsidiaries (individually, a "Subsidiary" and collectively, the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in ~~form~~ good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and ~~substance~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and, to the knowledge of such counsel, is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure so to qualify would not have, individually or in the aggregate, a Material Adverse Effect; (ii) all the outstanding shares of capital stock of the Company and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Memorandum, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned Subsidiaries, to the knowledge of such counsel, free and clear of any security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances; (iii) the Company's authorized equity capitalization is as set forth in the Final Memorandum; (iv) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, and subject, as to the enforcement of rights of indemnity or contribution, to applicable federal or state securities laws or principles of public policy); the Securities have been duly and validly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers under this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, and subject, as to the enforcement of rights of indemnity or contribution, to applicable federal or state securities laws or principles of public policy); the Registration Rights Agreement has been duly authorized, executed and delivered and constitutes the legal, valid, binding and enforceable instrument of the Company (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, and subject, as to the enforcement of rights of indemnity or contribution, to applicable federal or state securities laws or principles of public policy); and the statements set forth under the heading "Description of the Notes" and "Exchange Offer/ Registration Rights" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indenture and the Registration Rights Agreement, provide a fair summary of such provisions; (v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries or its or their property that (A) is not adequately disclosed in the Final Memorandum, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not singly or in the aggregate, result in a Material Adverse Effect, or (B) challenges any of the trademarks or service marks of the Company or its Subsidiaries described in the Final Memorandum; (vi) such counsel has no reason to believe that at the Execution Time and on the Closing Date the Final Memorandum contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information and statistical data contained therein, as to which such counsel need express no opinion); (vii) this Agreement has been duly authorized, executed and delivered by the Company; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained or filed, as applicable, by the Company or any Subsidiary in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except such as will be obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained (it being understood that such counsel need not express any opinion regarding blue sky or state securities laws); (ix) neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issue and sale of the Securities, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company or its Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which, to the knowledge of such counsel, the Company or any of its Subsidiaries is a party or bound or to which its respective property is subject, which breach, violation or imposition, individually or in the aggregate, would have a Material Adverse Effect; or (iii) any statute, law, rule, regulation (assuming compliance with applicable blue sky and state securities laws), judgment, order or decree applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, any of its Subsidiaries or any of their respective properties, which breach, violation or imposition, individually or in the aggregate, would have a Material Adverse Effect; (x) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and (xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum, will not be an "investment company" as defined in the Investment Company Act without taking account of any exemption arising out of the number of holders of the Company's securities. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the jurisdiction of incorporation of the Company, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to ~~each~~ counsel for the Initial Purchasers; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the ~~Representatives~~ Company and ~~its counsel~~public officials. References to the Final Memorandum in this Section 6(a) include any amendment or supplement thereto at the Closing Date. (b) The Representatives shall have received from ~~Winston~~ Akerman, Senterfitt & ~~▇▇▇▇▇▇~~Eidson, P.A., counsel for the Initial Purchasers, such opinion or ~~opinions~~opin▇▇▇▇, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Treasurer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries~~Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum. (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ Ernst & Young LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives., confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended May 31, 1999 and as at May 31, 1999, and stating in effect that: (ei) ~~Subsequent to~~ in their opinion the ~~Execution Time or, if earlier, the dates as of which information is given~~ pro forma financial statements included or incorporated in the Final Memorandum ~~(exclusive~~ and reported on by them comply as to form in all material respects with the applicable accounting requirements of ~~any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in~~ the ~~letter or letters referred to in paragraph (d) of this Section 6; or~~ Exchange Act and the related published rules and regulations thereunder; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with the standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the six-month period ended May 31, 1999, and as at May 31, 1999, as indicated in their report dated October 1, 1999; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and any ~~change~~committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to November 30, 1998, nothing came to their attention which caused them to believe that: (A) any unaudited financial statements included or incorporated in the Final Memorandum do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Final Memorandum; or (B) with respect to the period subsequent to May 31, 1999, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company or decreases in the consolidated net current assets or shareholders' equity of the Company and its subsidiaries as compared with the amounts shown on the May 31, 1999 unaudited pro-forma consolidated balance sheet included or incorporated in the Final Memorandum, or for the period from June 1, 1999 to such specified date there were any ~~development involving a prospective change~~decreases, as compared with the corresponding period in the preceding year, in consolidated net sales or ~~affecting~~ in the ~~financial condition, business~~ total or ~~properties~~ per share amounts of net income of the Company and its subsidiaries, ~~taken as a whole, whether~~ except in all instances for changes or ~~not arising from transactions in the ordinary course of business, except as~~ decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (C) the information included under the headings "Offering Memorandum Summary--Summary Financial Information" and "Selected Financial Data" is not in conformity with the disclosure requirements of Regulation S-K; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or ~~contemplated~~ statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Final Memorandum, including the information set forth under the captions "Offering Memorandum ~~(exclusive~~ Summary--Summary Financial Information," "Capitalization," Selected Financial Data," "Pro Forma Financial Data" and "Management's Discussion and Analysis of ~~any amendment or supplement thereto) the effect~~ Financial Condition and Results of ~~which, in any case referred to in clause (i) or (ii) above, is,~~ Operations" in the ~~sole judgment~~ Final Memorandum, agrees with the accounting records of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and ~~such agreement shall be in full force and effect according to~~ its ~~terms at all times from and after the Closing Date. (h) Prior to the Closing Date~~subsidiaries, ~~the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If~~ excluding any questions of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.legal interpretation;

Appears in 1 contract

Sources: Purchase Agreement (International Speedway Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Company, shall have furnished to the Initial Purchasers their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Representatives, in substantially the form attached hereto as Exhibit B. (b) ▇▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~Suvari, ~~counsel~~ General Counsel for the Company, shall have furnished to the ~~Representatives its~~ Initial Purchasers her written opinion, dated the Closing Date ~~and addressed to~~ or the ~~Representatives~~Additional Closing Date, as the case may be, in form and substance satisfactory to ~~each of~~ the ~~Representatives and its counsel.~~Representatives, in substantially the form attached hereto as Exhibit C. (bc) The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representatives a certificate of the ~~Company,~~ Company signed by the ~~Treasurer~~ chief executive officer and any of the chief financial officer, the treasurer and the principal accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied in all material respects with all ~~the~~ agreements and satisfied all ~~the conditions~~ con- ditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no ~~material adverse change~~ event or occurrence that would reasonably be expected to result in ~~the financial condition, business or properties of the Company and its subsidiaries, taken as~~ a ~~whole, whether or not arising from transactions in the ordinary course of business~~Material Adverse Effect, except as set forth in or contemplated by the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum. (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ Ernst & Young LLP to furnish to the Representatives ~~letters~~comfort letters regarding the Company, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (de) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, results of operations, business operations, assets or ~~properties~~ liabilities of the Company and its subsidiaries, taken as a whole, ~~whether or not arising from transactions in the ordinary course of business,~~ except as set forth in or contemplated in by the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~ Memorandum, the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum. (fg) On At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Representatives shall have received counterparts, conformed as executed, thereof. (h) At the Closing Date, the Company and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Representatives shall have received counterparts, conformed as executed, thereof. (i) At the Closing Date, the Company and the Trustee shall have entered into the Escrow Agreement and the Representatives shall have received counterparts, conformed as executed, thereof. (j) At the Closing Date, the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service~~eligible for clearance and settlement through the Depository Trust Company. (k) At the Closing Date, ~~Inc. and "A-" by Standard & Poor's Rating Services, and~~ the ~~Company~~ Securities shall have ~~delivered~~ been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD. (l) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s 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~~436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (m) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Representatives on the one hand, and ~~no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ each of the ~~Securities or any~~ executive officers and directors of the Company's , on the other ~~debt~~ hand, relating to sales and certain other dispositions of shares of Common Stock or certain other securities~~. (g) On~~ , delivered to you on or before the ~~Closing Date~~date hereof, ~~the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement~~ shall be in full force and effect ~~according to its terms at all times from and after~~ on the Closing Date or Additional Closing Date, as the case may be. (hn) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇~~▇, ▇▇▇▇~~▇ ~~▇▇▇▇, ▇▇▇▇▇▇▇, ▇~~& ▇▇▇▇▇▇▇ ~~▇▇▇▇▇~~LLP, New York, New York on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Cv Therapeutics Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company and the Guarantors contained herein at the Execution Time and the Closing Date (as though made on such Closing Date), to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of ~~its~~ their respective obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~Sidley~~ The Company shall have requested and caused (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, ~~shall have furnished~~ to furnish to the Representative its opinion, dated the Closing Date and addressed to the Initial Purchasers, to the effect of the substantive paragraphs set forth on Annex B-1 hereto and (ii) Holland and Knight LLP, local counsel for Equitrac Corporation, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, ~~in form and substance satisfactory~~ to ~~each~~ the effect of the ~~Representatives and its counsel~~substantive paragraphs set forth on Annex B-2 hereto. (b) The ~~Representatives~~ Representative shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the ~~Company~~Company (as to the items specified in (i) and (ii) below) and of each Guarantor (as to the items specified in (i) below), signed by (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board or the Chief Executive Officer of the Company and (y) the principal financial or accounting officer of the Company or the Guarantor, respectively, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company and each Guarantor, as applicable, in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and each Guarantor, as applicable, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have furnished to the Representative a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative. (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused each of BDO ▇▇▇▇▇▇▇, LLP and Deloitte & Touche LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representative. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) On Subsequent to the Execution Time and prior to the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a ~~downgrading~~ possible change that does not indicate the direction of the possible change, in the rating ~~assigned to~~ accorded any of the ~~Securities~~ debt securities of the Company or any of ~~the Company's first mortgage bonds or commercial paper~~ its subsidiaries by any "“nationally recognized statistical rating ~~agency",~~ organization,” as ~~that~~ such term is defined ~~by the Commission for purposes of Rule 436(g)(2~~in Section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing DateExchange Act. (h) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. (i) Prior to the Closing Date, the Company and each Guarantor shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇~~▇▇▇ ▇~~▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Nuance Communications, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers or the Representatives to purchase the Firm Securities or the Series A Option Securities and/or the Series B Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 2(b) hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused Sonnenschein Nath & Rosenthal, counsel for the Company, to furni▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇nta▇▇▇▇▇ ▇▇~~▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its~~ s opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in ~~form and substance satisfactory to each of the Representatives and its counsel~~Exhibit B hereto. (b) The Representatives shall have received from ~~Winston~~ Davis Polk & ~~▇▇▇▇▇▇~~Wardwell, counsel for the Initial Purchasers, such ~~opinion or opinions~~opi▇▇▇▇, ~~dated the Closing~~ ▇▇▇ed ▇▇▇ ▇▇▇▇ing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chief Executive Officer and President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Final Memorandum and reported on by them comply as to form with the applicable accounting requirements of Regulation S-X; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with the standards established under Statement on Auditing Standards No. 100 of the unaudited interim financial information for the six-month period ended June 30, 2003, and as at June 30, 2003; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and any executive, finance, compensation and audit committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2002, nothing came to their attention which caused them to believe that: (A) any unaudited financial statements included or incorporated by reference in the Final Memorandum do not comply as to form with applicable accounting requirements of Regulation S-X and with the published rules and regulations of the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Final Memorandum; or (B) with respect to the period subsequent to June 30, 2003, there was any change, at a specified date not more than five days prior to the date of the letter, in the common stock of the Company, as compared with the amounts shown on the June 30, 2003 consolidated balance sheet included or incorporated by reference in the Final Memorandum, except in all instances for changes set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Final Memorandum, the information included or incorporated by reference in the Company's Annual Report on Form 10-K, incorporated by reference in the Final Memorandum, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Final Memorandum, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(d) to the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change ~~or decrease~~ specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On The Securities shall have been designated as PORTAL-eligible securities in accordance with the ~~Closing Date, (i)~~ rules and regulations of the NASD and the Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the settlement through The Depository Trust Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On Prior to the ~~Closing Date~~Execution Time, the ~~Initial Purchasers~~ Company shall have ~~received~~ furnished to the ~~Registration Rights Agreement duly executed~~ Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and ~~delivered by~~ director of the Company ~~and such agreement shall be~~ listed in ~~full force and effect according~~ Schedule II hereto addressed to ~~its terms at all times from and after~~ the ~~Closing Date~~Representatives. (h) The Company shall have caused the shares of Common Stock initially issuable upon conversion of the Securities to be approved for listing, subject to issuance, on the New York Stock Exchange. (i) The conditions precedent set forth in Sections 3(a) and (b) of the Second Amendment dated as of August 4, 2003 to the Credit Agreement dated as of December 19, 2001 among the Company, the lenders identified therein and Bank of America, N.A., as administrative agent, shall have been satisfied. The Letter Agreement dated as of August 4, 2003 relating to the Loan Agreement dated as of June 30, 2003 between the Company and Citibank N.A. shall have been executed by the parties thereto. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of ~~counsel for the Company~~Davis Polk & Wardwell at 450 Lexington Avenue, ~~at Sidley~~ New York, New York, ▇▇▇▇ ▇▇▇ ▇▇▇~~▇▇ & ▇▇▇▇, ▇~~sin▇ ▇▇▇▇~~▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date~~.

Appears in 1 contract

Sources: Purchase Agreement (DST Systems Inc)

Conditions to the Obligations of the Initial Purchasers. The ------------------------------------------------------- obligations of the Initial Purchasers to purchase the ~~Securities~~ Notes shall be subject to the continued accuracy of the representations and warranties on the part of the Company and the Executing Subsidiaries contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution ~~Time~~ Time"), and at the Closing ~~Date,~~ Date to the accuracy of the statements of the Company and the Executing Subsidiaries made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Executing Subsidiaries of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have furnished to the Initial Purchasers the opinion of ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇, special counsel for the Company, dated the Closing Date, substantially to the effect that: (i) the statements in the Final Memorandum under the caption "Risk Factors--Original Issue Discount; Possible Unfavorable Tax and Other Legal Consequences for Holders of Notes", Certain United States Federal Income Tax Considerations" and "Exchange Offer; Registration Rights", to the extent such statements constitute matters of law, summaries of legal matters or legal conclusions, have been reviewed by such counsel and are correct in all material respects; (ii) no consent, approval, authorization or order of any state or Federal governmental authority is required under applicable law to be obtained by the Company or the Executing Subsidiaries as of the Closing Date for the consummation by the Company and the Executing Subsidiaries of the transactions contemplated herein, except any such consent, approval, authorization or order as may be required under the blue sky or securities laws of any state in the United States in connection with the purchase and sale of the Notes by the Initial Purchasers, as to which such counsel shall not be required to render any opinion; (iii) neither the issuance and sale of the Notes by the Company to the Initial Purchasers, the execution and delivery by the Company of this Agreement, the Indenture and the Registration Agreement, the execution and delivery by the Executing Subsidiaries of this Agreement, nor the consummation by the Company, as of the Closing Date of the transactions herein or therein contemplated will conflict with, result in a breach or violation of, or constitute a default under the terms of (a) any other indenture, material agreement or instrument known to such counsel and to which the Company or its Subsidiaries is a party or bound, (b) any judgment, order or decree known to such counsel and binding on the Company or its Subsidiaries of any state or Federal court or any state or Federal governmental agency having jurisdiction over the Company or its Subsidiaries or (c) the articles of incorporation or by-laws of the Company or its Subsidiaries; (iv) assuming (A) the accuracy of the representations and warranties of the Company set forth in Section 1 of this Agreement, (B) the due performance by the Company of the agreements set forth in Section 5 of this Agreement, (C) the accuracy of the representations and warranties made by the Initial Purchasers in Section 4 of this Agreement and the due performance by the Initial Purchasers of the agreements set forth in Section 4 of this Agreement (including all exhibits hereto), (D) compliance by the Initial Purchasers with the offering and transfer procedures and restrictions described elsewhere in this Agreement and the Final Memorandum and (E) the accuracy of the representations and warranties made in accordance with this Agreement and the Final Memorandum by purchasers to whom the Initial Purchasers initially resell Notes, no registration of the Notes under the Securities Act is required, and no qualification of the Indenture under the Trust Indenture Act is necessary, for the offer and sale by the Initial Purchasers of the Notes in the manner contemplated by this Agreement; (v) the Company is not an "investment company" within the meaning of the Investment Company Act without taking account of any exemption arising out of the number of holders of the Company's securities; (vi) the summaries in the Final Memorandum of (x) the provisions of the certain investors liquidation rights described under the heading "Description of Capital Stock -- Investors' Liquidation Rights" and (y) the Stock Purchase Agreement (as defined in the Final Memorandum) provide a fair summary of such provisions; (vii) the Notes are in the form contemplated by the Indenture and, when executed by the Company and authenticated or countersigned by the Trustee, in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; (viii) the statements set forth under the headings "Description of the Notes" insofar as such statements purport to summarize certain provisions of the Notes and the Indenture provide a fair summary of such provisions; (ix) each of this Agreement, the Indenture and the Registration Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company, in accordance with their respective terms; and the Agreement constitutes a legal, valid and binding obligation of the Executing Subsidiaries, enforceable against the Executing Subsidiaries, in accordance with its terms; (x) each of the Company and its Subsidiaries is a corporation in good standing under the laws of the jurisdiction of its incorporation; there are no restrictions on the corporate power and capacity of the Company or any of its Subsidiaries to own and lease property and assets and to carry on business; (xi) each of the Company and its Subsidiaries is qualified or registered to carry on business as a foreign corporation in each jurisdiction in which failure to do so would have a material adverse effect on it or its operations; (xii) the authorized capital of the Company consists of 85,567.693 Class A Common Shares, 35,000 Class B Common Shares and 15,000 Class C Common Shares and conforms in all material respects to the information contained in the Final Memorandum under the heading "Description of Capital Stock"; (xiii) the outstanding shares of capital stock of the Company and its Subsidiaries have been duly authorized and validly issued and, assuming receipt of the consideration thereof, are outstanding as fully paid and non-assessable; all of the outstanding shares of capital stock of the Subsidiaries are registered in the name of the Company or its Subsidiaries; (xiv) there are no restrictions (other than restrictions which have been waived) on the corporate power and capacity of the Company to enter into this Agreement, the Indenture and the Registration Agreement, to execute, issue and sell the Notes or to carry out its obligations hereunder and thereunder; (xv) the execution and delivery of this Agreement, the Indenture, the Registration Agreement and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action on the part of the Company; (xvi) the execution, issuance and sale of the Notes has been duly authorized by all necessary corporate action on the part of the Company; (xvii) each of the Notes, this Agreement, the Indenture and the Registration Agreement has been duly executed and delivered by the Company; (xviii) to the knowledge of such counsel, there is no pending or threatened action or suit or judicial, arbitral or other administrative proceeding to which the Company or its Subsidiaries is the subject that, singly or in the aggregate, (A) questions the validity of this Agreement, the Registration Agreement or the Indenture or any action taken or to be taken pursuant hereto or thereto, or (B) if determined adversely to the Company or its Subsidiaries is reasonably likely to have a Material Adverse Effect; (xix) the Indenture conforms to all material requirements of the Trust Indenture Act and the rules and regulations applicable thereto; Such counsel shall also state that they have no reason to believe that at the Execution Time the Final Memorandum contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or that at the Closing Date, the Final Memorandum includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Illinois, Delaware and New York or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials and upon the representations and warranties set forth in this Agreement, the Indenture and the Registration Agreement. In addition, such opinion may be qualified to the extent that the enforceability of any right or remedy, including without limitation any right to liquidated damages, may be subject to general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether enforceability is considered in a proceeding in equity or in law) and to the discretion of the court before which proceedings hereof may be brought. Such opinion may also be subject to standard limitations, assumptions, qualifications and exceptions. All references in this Section 6(a) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the Closing Date. (b) The Company shall have furnished to the Initial Purchasers the opinion of ▇▇▇▇▇▇▇ & Berlin, special regulatory counsel for the Company, ~~shall have furnished to the Representatives its opinion,~~ dated the Closing ~~Date and addressed to the Representatives~~Date, in form and substance satisfactory to ~~each of~~ the ~~Representatives~~ Initial Purchasers and ~~its~~ their counsel. (bc) The ~~Representatives~~ Initial Purchasers shall have received from ~~Winston &~~ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ~~counsel for the Initial Purchasers,~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP such opinion ~~or opinions,~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Mortgage, the Registration Rights Agreement~~Notes, the Final Memorandum ~~(as amended or supplemented at the Closing Date)~~ and other related matters as the ~~Representatives~~ Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) ~~The~~ Each of the following conditions shall have been satisfied and the Company shall have furnished to the ~~Representatives~~ Initial Purchasers a certificate of the Company, signed by each of the ~~Treasurer~~ Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the ~~signer of such certificate has~~ signatories thereto have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and~~; (ii) since the date of the most recent financial statements included in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no ~~material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole~~Material Adverse Change, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto); and (iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently). (de) At the Execution Time and at the Closing Date, ~~the Company~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have ~~requested and caused PricewaterhouseCoopers LLP to furnish~~ furnished to the ~~Representatives~~ Initial Purchasers a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Initial Purchasers, addressed to the Initial Purchasers confirming that they are independent accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma information included in the Final Memorandum and reported on by them comply as to form in all material respects with generally accepted accounting principles; (ii) based upon a reading of the latest unaudited consolidated financial statements made available by the Company; their limited review in accordance with the standards established by the American Institute of Certified Public Accountants ("AICPA") of the unaudited interim financial information for the date covered by such financial statements for the period; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; such specified procedures would include, but are not limited to, a reading of minutes of the shareholders' and directors' meetings (and any meetings of committees of the Board of Directors) of the Company, and its Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and Subsidiaries as to transactions and events subsequent to December 31, 1997, nothing has come to their attention that causes them to believe that: (1) any unaudited financial statements included in the Final Memorandum do not comply as to form in all material respects with accounting requirements of the Securities Act and with the published rules and regulations of the Commission; and any unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Final Memorandum; or (2) with respect to the period subsequent to December 31, 1997, there were any changes, at February 10, 1998, in the long- term obligations of the Company and the Subsidiaries or capital stock of the Company or decreases in the consolidated assets or shareholders' equity of the Company as compared with the amounts shown on the December 31, 1997 consolidated balance sheet included in the Final Memorandum, or for the period from December 31, 1997 to February 10, 1998 there were any decreases, as compared with the corresponding period in the preceding year, in net sales, operating expenses, operating income or income (loss) before income taxes and extraordinary items or in total, of the Company and the Subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Final Memorandum is mathematically accurate and agrees with the accounting records of the Company and its Subsidiaries, in each case, excluding any questions of legal interpretation. All references in this Section 6(e) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the date of the letter. (ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there shall not have been (~~i) any change~~ i)any change, decrease or ~~decrease~~ increase specified in the letter or letters referred to in paragraph (de) of this ~~Section 6;~~ Section6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Focal Communications Corp)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, outside counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in the form ~~and substance satisfactory to each~~ attached hereto as Exhibit A, further relying on certificates of officers of the ~~Representatives~~ Company and ~~its counsel~~others and containing assumptions, qualifications, and exemptions as are customary in transactions of this type. (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel of the Company, shall have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit B further relying on certificates of officers of the Company and others and containing assumptions, qualifications, and exemptions as are customary in transactions of this type. (c) The Representatives shall have received from ~~Winston &~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, further relying on certificates of officers of the Company and others and containing assumptions, qualifications, and exemptions as are customary in transactions of this type with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ President or General Counsel, and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum. (de) At the Execution Time and at the Closing Date, the Company shall have requested and caused ~~PricewaterhouseCoopers~~ Ernst & Young LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Final Memorandum and reported on by them comply as to form with the applicable accounting requirements of Regulation S-X; and (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with the standards established under Statement on Auditing Standards No. 100 of the unaudited interim financial information for the three-month period ended March 31, 2005; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the Audit, Compensation, Corporate Governance, Executive and Nominations committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2004, nothing came to their attention which caused them to believe that: (A) any unaudited financial statements included on Form 10-Q and incorporated by reference in the Final Memorandum do not comply as to form with applicable accounting requirements of Regulation S-X and with the published rules and regulations of the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10 Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Final Memorandum; or (B) with respect to the period subsequent to March 31, 2005, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long term debt of the Company and its subsidiaries or common stock of the Company, other accrued liabilities or litigation-related and other long-term liabilities or decreases in the total stockholders' equity of the Company, as compared with the amounts shown on the March 31, 2005 consolidated balance sheet included or incorporated by reference in the Final Memorandum, or for the period from April 1, 2005 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter in total operating revenues or income before taxes and cumulative effect of accounting change, net income, operating margin or per share amounts of net earnings of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives. (eiii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Final Memorandum, including the information set forth under the caption "Summary Financial Data" in the Final Memorandum, the information included or incorporated by reference in Items 1, 6, 7 and 11 of the Company's Annual Report on Form 10 K, incorporated by reference in the Final Memorandum, the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Final Memorandum, the Current Reports on Form 8-K filed with the Commission on January 10, February 24, April 11, April 20, June 15 and June 22, 2005 incorporated by reference in the Final Memorandum and the information included under the caption "Compensation of Named Executive Officers" in the Company's Definitive Proxy Statement filed with the Commission on March 11, 2005 incorporated by reference in the Final Memorandum agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(d) to the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any adverse change, or any development involving a prospective change, in or affecting the condition (financial ~~condition~~or otherwise), prospects, earnings, business or properties of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto). (fg) ~~On the Closing Date, (i) the~~ The Securities shall be ~~rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc.~~ eligible for clearance and ~~"A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ settlement through The Depository Trust Company. (h) Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company's ~~first mortgage bonds or commercial paper~~ securities by any "nationally recognized statistical rating ~~agency",~~ organization" (as ~~that term is~~ defined ~~by the Commission~~ for purposes of Rule ~~436(g)(2~~436(g) under the Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency shall have publicly announced~~ or of a possible change in any such rating that ~~it has under surveillance or review, with possible negative implications, its rating~~ does not indicate the direction of the ~~Securities or any of the Company's other debt securities~~possible change. (gi) On The Registration Rights Agreement, in form and substance consistent with the ~~Closing Date~~summary description contained in the Final Offering Memorandum and otherwise reasonably acceptable to the Company and the Representatives, ~~the Initial Purchasers~~ shall have ~~received the Registration Rights Agreement duly~~ been executed ~~and delivered~~ by the Company and ~~such agreement shall be in full force and effect according~~ delivered to ~~its terms at all times from and after~~ the ~~Closing Date~~Representatives. (hj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further ~~information,~~ customary certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at ~~Sidley ▇▇▇~~▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇~~▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Genentech Inc)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company and the Guarantor contained herein at the Execution ~~Time and~~ Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of each of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and Guarantor of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Guarantor shall have requested and caused Meitar Liquornik Geva & Leshem ▇▇▇▇▇~~▇ ▇▇▇▇▇ &~~ ▇▇▇▇, Israeli counsel for the ~~Company~~Guarantor, ~~shall~~ to have furnished to the Representatives ~~its opinion,~~ their opinion dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer of the Company, dated the Closing Date, to the effect ~~that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and~~ that: (i) ~~the representations and warranties~~ Each of the ~~Company~~ Guarantor and TwinSys Limited, TwinSys Data Storage Limited Partnership, Flash Holding Ltd., Eurom Flashware Solutions Ltd., Smart Caps Ltd., MegaSIM Ltd. and KeyComputing Ltd. (the "Israeli Subsidiaries") has been duly organized and is validly existing as a company (and as to TwinSys Data Storage Limited Partnership, a limited partnership) under the laws of Israel, with full corporate or similar power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in ~~this Agreement~~ the Final Memorandum. (ii) All of the outstanding share capital or partnership interests of each Israeli Subsidiary have been duly and validly authorized and issued and are ~~true~~ fully paid and ~~correct~~ nonassessable, and, except as set forth in the Final Memorandum or on Schedule II hereto, all outstanding share capital or partnership interests of the Israeli Subsidiaries are owned by the Guarantor either directly or through wholly owned subsidiaries and are free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance; (iii) The Guarantor`s authorized equity capitalization is as set forth in the Final Memorandum; the share capital of the Guarantor conforms in all material respects on to the description thereof contained in the Final Memorandum; the outstanding Ordinary Shares have been duly and as validly authorized and issued and are fully paid and nonassessable and, to the best of such counsel`s knowledge, no outstanding Ordinary Shares were issued in the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or seven years immediately prior to the ~~Closing Date~~date hereof in violation of any preemptive or other similar right; the Ordinary Shares initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Board of Directors of the Guarantor has duly and validly adopted resolutions reserving such Ordinary Shares for issuance upon conversion of the Securities; the holders of outstanding share capital of the Guarantor are not entitled under any law, and, to the best of such counsel`s knowledge, under any contracts, to preemptive or other rights to subscribe for the Securities or the Ordinary Shares issuable upon conversion thereof; and, except as set forth in the Final Memorandum, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, share capital of or ownership interests in the Guarantor are outstanding; (iiiv) ~~since~~ the ~~date~~ Indenture has been duly authorized and executed by the Guarantor; the Guarantees have been duly authorized by the Guarantor; the Securities are convertible into Ordinary Shares in accordance with their terms; the Registration Rights Agreement has been duly authorized and executed by the Guarantor; and the statements set forth under the heading "Description of Share Capital" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the ~~most recent financial statements included~~ Ordinary Shares, provide a fair summary of such provisions; (v) To the knowledge of such counsel, there are no material pending legal proceedings, to which the Guarantor or any Israeli Subsidiary or their respective property is subject which are not adequately disclosed in the Final Memorandum (exclusive of any amendment or supplement thereto), and to such counsel`s knowledge, there is no material franchise, contract or other document which has been ~~no material adverse change in~~ entered into or executed by the ~~financial condition, business~~ Guarantor or ~~properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions~~ any Israeli Subsidiary other than in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of business which ~~information~~ is ~~given~~ not described in the Final Memorandum (exclusive of any amendment or supplement thereto)~~, there shall not have been (i) any change or decrease specified~~ ; and the statements in the ~~letter or letters referred~~ Final Memorandum under the headings "Management`s Discussion and Analysis of Financial Condition and Results of Operation ‑- Taxation", "Certain Material Israeli Tax Considerations", "Share Ownership ‑- Revisions to the Tax Ordinance", "Taxation" (except "‑- United States Federal Income Tax Considerations"), and "Memorandum and Articles of Association" fairly summarize the matters therein described; (vi) Such counsel has participated in ~~paragraph (d)~~ conferences with officers and other representatives of ~~this Section 6; or (ii) any change~~the Company, ~~or any development involving a prospective change~~the Guarantor, ~~in or affecting~~ the ~~financial condition, business or properties~~ Representatives and representatives of the independent certified public accountants of the Company and ~~its subsidiaries~~the Guarantor, ~~taken as a whole~~at which conferences the contents of the Final Memorandum and related matters were discussed and, ~~whether~~ although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or ~~not arising from transactions in~~ fairness of the ~~ordinary course of business, except as set forth in or contemplated~~ statements contained in the Final Memorandum (~~exclusive~~ except as specified in paragraphs (iv) and (v) above and paragraph (xv) below), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that at the Execution Time or on the Closing Date the Final Memorandum included or includes any ~~amendment~~ untrue statement of a material fact or ~~supplement thereto)~~ omitted or omits to state a material fact necessary to make the ~~effect of which, in any case referred to in clause (i) or (ii) above, is~~statements therein, in the ~~sole judgment~~ light of the ~~Representatives~~circumstances under which they were made, ~~so material~~ not misleading (in each case, other than the financial statements and ~~adverse~~ related notes, the financial statement schedules and other financial and accounting data contained therein, as to ~~make it impractical~~ which such counsel need express no opinion); (vii) This Agreement has been duly authorized, executed and delivered by the Guarantor; (viii) No consent, approval, authorization, permit, filing with or ~~inadvisable~~ order of any Israeli court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rigths Agreement, except such approvals (specified in such opinion) as have been described in the Final Memorandum, all of which have been obtained. Such counsel is not aware that proceedings to ~~market the Securities as~~ rescind or modify such authorizations, permits, consents and exemptions have been instituted or are pending or contemplated by any Israeli authority; and no consent, approval, authorization or order of or filing with any court or governmental agency in Israel is required for the ~~Final Memorandum~~ consummation of the transactions contemplated by this Agreement except for those which have been obtained; (~~exclusive~~ ix) Neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issuance and sale of the Securities, nor the consummation of any ~~amendment~~ other of the transactions herein or ~~supplement thereto). (f) On~~ therein contemplated, nor the ~~Closing Date~~fulfillment of the terms hereof or thereof, including the issuance of the Ordinary Shares upon the conversion of the Securities, will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Guarantor or of any of its subsidiaries pursuant to, (i) the ~~Securities shall~~ Memorandum of Association and Articles of Association of the Guarantor or similar organizational documents of the Israeli Subsidiaries, (ii) to the knowledge of such counsel, the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (iii) to the knowledge of such counsel, any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties; (x) The Guarantor has duly and irrevocably appointed M-Systems, Inc., as its agent to receive service of process in any action against it in any Federal or state court sitting in the State of New York arising out of or in connection with this Agreement, the Indenture or the Registration Rights Agreement; (xi) Under the laws of the State of Israel, the Guarantor`s designation of any Federal or state court sitting in the State of New York for any action to be ~~rated "A3"~~ brought by ~~▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services~~the Guarantor against the Initial Purchasers in relation to this Agreement, and the ~~Company shall have delivered~~ designation of the law of the State of New York to apply to this Agreement is binding upon the Guarantor and, if properly brought to the ~~Representatives evidence satisfactory~~ attention of the court or administrative body in accordance with the laws of Israel, would be enforceable in any judicial or administrative proceeding in Israel; (xii) Subject to certain time limitations, an Israeli court may declare a foreign civil judgment enforceable if it finds that the judgment was rendered by a court which was, according to the ~~Representatives confirming~~ laws of the state of the court, competent to render the judgment; the judgment is no longer appealable; the obligation imposed by the judgment is enforceable according to the rules relating to enforceability of judgments in Israel and the substance of the judgment is not contrary to public policy; and the judgment is executory in the state in which it was given. A foreign judgment will not be declared enforceable if it was given in a state whose laws do not provide for the enforcement of judgments of Israeli courts (subject to exceptional cases) or if its enforcement is likely to prejudice the sovereignty or security of the State of Israel. An Israeli court also will not declare a foreign judgment enforceable if it is proved to the Israeli court that (i) the ~~Securities have such ratings, and~~ judgment was obtained by fraud; (ii) ~~since~~ there was no due process; (iii) the ~~Execution Time, there shall~~ judgment was rendered by a court not ~~have occurred a downgrading~~ competent to render it according to the laws of private international law in Israel; (iv) the judgment is at variance with another judgment that was given in the ~~rating assigned~~ same matter between the same parties and which is still valid; or (v) at the time the action was brought in the foreign court a suit in the same matter and between the same parties was pending before a court or tribunal in Israel; (xiii) Except for the Israeli stamp duty and assuming that none of the Initial Purchasers is otherwise subject to taxation in the State of Israel, neither the sale and delivery to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating Initial Purchasers of the Securities ~~or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered~~ to be sold by the Company and ~~such agreement shall be~~ the Guarantor hereunder nor the issuance of Ordinary Shares upon the conversion thereof is subject to any tax imposed by Israel or any political subdivision thereof; any Israeli stamp duty due in ~~full force and effect according to its terms at all times from and after~~ connection with the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in transactions contemplated by this Agreement shall not be assessable against the Initial Purchasers; (xiv) Other than as described in the Final Memorandum, under the current laws and regulations of the State of Israel, all payments of principal, premium and interest (to the extent that such amounts are required to be paid by the Guarantor under the terms of the Indenture) on the Securities may be paid by the Guarantor to the registered holder thereof in U.S. dollars (that may be obtained through conversion of New Israeli Shekels) that may be freely transferred out of the State of Israel, and all dividends and other distributions declared and payable on the Ordinary Shares issuable upon conversion thereof, may be paid by the Guarantor to the registered holder thereof in New Israeli Shekels that may be converted into U.S. dollars and freely transferred out of the State of Israel, and all such payments, dividends and other distributions made to holders of the Securities who are non-residents of the State of Israel will not be subject to the State of Israel income, withholding or other taxes under the laws and regulations of the State of Israel and are otherwise free and clear of any other tax, duty withholding or deduction in the State of Israel and without the necessity of obtaining any governmental authorization in the State of Israel; (xv) The statements in the Final Memorandum, insofar as such statements refer to (x) the Memorandum of Association or the Articles of Association or other organizational documents of the Guarantor, and (y) contracts, indentures, mortgages, loan agreements, notes, leases, joint ventures and other agreements, arrangements or instruments to which the Guarantor is a party as set forth under the captions "Summary -- the Offering", "Risk Factors", "Management`s Discussion and Analysis of Financial Condition and Results of Operations", "Information on the Company -- Business Overview -- Our Products", "Information on the Company -- Business Overview -- Marketing Channels", "-- Sources of Supply", "Directors, Senior Management and Employees -- Board Practices", "Directors, Senior Management and Employees- Share Ownership -- Share Option Plans and Recent Changes in Israeli Law", and "Related Party Transactions", are accurately described in all material ~~respects reasonably satisfactory~~ respects, and insofar as statements in ~~form~~ the Final Memorandum describe Israeli laws and ~~substance~~ regulations, they are fair summaries of the information set forth therein and are accurate in all material respects; (xvi) All licenses, approvals or permits described in the Final Memorandum as having been issued by any Israeli authority have been duly issued and, to the ~~Representatives~~ knowledge of such counsel, have not been rescinded or modified and are in full force and effect; such counsel is not aware that any proceedings to rescind or modify such licenses, approvals or permits have been instituted and are pending or threatened by any Israeli authority; and (xvii) To the best of such counsel`s knowledge, except as described in the Final Memorandum, the Guarantor does not own any interest in real property. To the best of such counsel`s knowledge, any real property and building held under lease by the Guarantor are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Israel, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Initial Purchasers, ~~this Agreement~~ and ~~all obligations~~ (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the ~~Initial Purchasers hereunder may be cancelled at, or~~ Guarantor and public officials. References to the Final Memorandum in paragraph (b) include any supplements thereto at ~~any time prior to,~~ the Closing Date by unless otherwise specified. (b) The Company and the ~~Representatives. Notice of such cancellation~~ Guarantor shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Companyhave requested and caused Weil, ~~at Sidley~~ Gotshal & ▇▇▇▇▇▇ ~~▇▇▇▇▇ & ▇▇▇▇~~LLP, ~~▇▇ ▇~~U.S. counsel for the Company and the Guarantor, to have furnished to the Representatives their opinion and letter, both dated the Closing Date and addressed to the Representatives, substantially to the effect set forth on Exhibit 2 hereto. (c) The Guarantor shall have requested and caused Dr. ▇▇▇▇ ▇▇▇▇▇▇▇~~▇ ▇▇▇▇▇~~▇, ~~▇▇▇▇▇ ▇▇▇▇~~intellectual property counsel for the Guarantor, ~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on~~ to have furnished to the Representatives his opinion dated the Closing ~~Date.~~Date and addressed to the Representatives, to the effect that: (i) Such counsel has no reason to believe that the statements in relation to the patents and trademarks in the Final Memorandum contain any untrue statement of a material fact, or 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, with respect to (A) patents, pa

Appears in 1 contract

Sources: Purchase Agreement (M-Systems Flash Disk Pioneers LTD)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Company shall have delivered, or cause to be delivered to the Representative and the Collateral Agent the Secured Obligation Designation, in form and substance reasonably satisfactory to the Representative and executed by the Company and the Company shall make payment or arrangements for payment of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents and the security interests required thereby, if any. (b) The Company shall have requested and caused ▇▇▇~~▇▇▇~~ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, ~~shall have furnished~~ and in-house counsel of the Company to furnish to the ~~Representatives its opinion~~Representative on the Closing Date their opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, in form and substance reasonably satisfactory to ~~each~~ the Representative. In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the jurisdiction of incorporation of the ~~Representatives~~ Company, the State of New York or the federal laws of the United States, to the extent they deem proper and ~~its counsel~~specify such reliance in such opinions, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Initial Purchasers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References therein to the Offering Memorandum shall also include any supplements thereto at the Closing Date. (bc) ~~The Representatives~~ On the Closing Date, the Representative shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the ~~Final~~ Offering Memorandum (~~as amended or supplemented at the Closing Date~~together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by and in their capacity as such (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board, the President or any Senior Vice President and (y) the principal financial or accounting officer of the Company or the Treasurer, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has carefully examined~~ have reviewed the ~~Final Memorandum~~Disclosure Package, the Offering Memorandum and any ~~amendment~~ supplements or ~~supplement to~~ amendments thereto, as well as each electronic road show used in connection with the ~~Final Memorandum~~ offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing ~~Date,~~ Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and~~; (ii) since the date of the most recent financial statements included or incorporated by reference in the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any ~~amendment or~~ supplement thereto), there has been no material adverse ~~change in the financial condition~~effect, ~~business or properties of the Company~~ and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any no development involving a prospective ~~change~~change which would have a material adverse effect, in on the condition (financial or ~~affecting the financial condition~~otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of any supplement thereto). (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused Deloitte & Touche LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in the form agreed with counsel for the Initial Purchasers confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder. References therein to the Offering Memorandum shall also include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Offering Memorandum (exclusive of any supplement thereto), as the case may be, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by the ~~Final~~ Disclosure Package and the Offering Memorandum (exclusive of ~~any amendment or~~ supplement thereto). (fg) ~~On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered~~ Subsequent to ~~the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since~~ the Execution Time, there shall not have ~~occurred a downgrading~~ been any decrease in the rating ~~assigned to the Securities or~~ of any of the Company~~'s first mortgage bonds or commercial paper~~ ’s debt securities by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that~~ such term is defined by the Commission ~~for purposes of Rule 436(g)(2~~in Section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the ~~Securities~~ Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the ~~Company's other debt securities~~possible change. (gh) On At the time of execution of this Agreement and on the Closing Date, the ~~Initial Purchasers~~ Company shall have ~~received~~ furnished to the ~~Registration Rights~~ Representative a certificate, dated the time of execution of this Agreement ~~duly executed~~ and ~~delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after~~ the Closing Date, respectively, of the Company’s chief financial officer with respect to certain financial information contained in the Preliminary Offering Memorandum, the Disclosure Package and the Offering Memorandum in form and substance reasonably satisfactory to the Representative. (hi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 5 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Representatives~~ Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section ~~6 will~~ 5 shall be delivered at the office of ~~counsel for the Company, at Sidley ▇~~▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇~~, ▇▇ ▇~~▇▇▇▇ LLP, counsel for the Initial Purchasers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Wyndham Destinations, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the Execution ~~Time and~~ Time, the Closing Date (as though made on such Closing Date) and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~Sidley~~ The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, ~~in form and substance satisfactory~~ to ~~each~~ the effect of the ~~Representatives and its counsel~~substantive paragraphs set forth on Annex B hereto. (b) The Representatives shall have received from ~~Winston~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Initial Purchasers, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the ~~Registration Rights Agreement~~Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Treasurer~~ Chairman of the Board or the Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the ~~Final Memorandum, any amendment or supplement to~~ Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial ~~condition, business~~ or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretootherwise), ~~there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change~~prospects, ~~or any development involving a prospective change, in or affecting the financial condition~~earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have furnished to the Representatives a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) At the Execution Time and at the Closing Date, the Company shall have requested and caused each of BDO USA, LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representatives. (f) On the date hereof, the Representatives shall have received a written certificate executed by the Chief Financial Officer of the Company, the form of which is attached as Schedule III hereto. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the offering or delivery of the Securities as contemplated by in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (fh) On Subsequent to the Execution Time and prior to the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a ~~downgrading~~ possible change that does not indicate the direction of the possible change, in the rating ~~assigned to~~ accorded any of the ~~Securities~~ debt securities of the Company or any of ~~the Company's first mortgage bonds or commercial paper~~ its subsidiaries by any "“nationally recognized statistical rating ~~agency",~~ organization,” as ~~that~~ such term is defined ~~by the Commission for purposes of Rule 436(g)(2~~in Section 3(a)(62) ~~under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating~~ of the ~~Securities or any of the Company's other debt securities~~Exchange Act. (gi) ~~On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement~~ The Securities shall be ~~in full force~~ eligible for clearance and ~~effect according to its terms at all times from and after the Closing Date~~settlement through The Depository Trust Company. (hj) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the executive officers and directors of the Company set forth on Annex A and addressed to the Initial Purchasers. (k) The Company shall have caused the Maximum Number of Shares to be approved for listing, subject to issuance, on Nasdaq. (l) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the ~~Company~~Initial Purchasers, at ~~Sidley ▇▇▇~~▇▇▇ ▇~~▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ▇▇▇▇~~▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Nuance Communications, Inc.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company~~ W▇▇▇▇▇▇▇ Parties contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the ~~Company~~ W▇▇▇▇▇▇▇ Parties made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ W▇▇▇▇▇▇▇ Parties of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~Sidley~~ The Issuers shall have requested and caused A▇▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇▇▇▇~~LLP, counsel for the ~~Company~~Issuers, ~~shall have furnished~~ to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in substantially the form ~~and substance satisfactory to each~~ of ~~the Representatives and its counsel~~Exhibit A hereto. (b) The Partnership shall have requested and caused J▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel for the Partnership, to furnish to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form of Exhibit B hereto. (c) The Representatives shall have received from ~~Winston &~~ V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the ~~Mortgage~~Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the ~~Company~~ Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cd) The ~~Company~~ Partnership shall have furnished to the Representatives a ~~certificate of the Company~~certificate, signed by (x) the ~~Treasurer~~ Chairman of the ~~Company~~Board and the Chief Executive Officer and (y) the principal financial or accounting officer of the General Partner, dated the Closing Date, to the effect that the ~~signer~~ signers of such certificate ~~has~~ have carefully examined the Disclosure Package and the Final Memorandum, and any ~~amendment~~ amendments or ~~supplement to the Final Memorandum~~ supplements thereto, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ W▇▇▇▇▇▇▇ Parties in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date~~, and~~ ; (ii) the ~~Company has~~ W▇▇▇▇▇▇▇ Parties have complied with all the agreements and satisfied all the conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and (iiiii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum, there has been no material adverse change in the condition (financial or otherwise), results of operations, business or properties of the Partnership Entities, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum. (e) At the Execution Time, the Representatives shall have received from Ernst & Young LLP a letter or letters, in form and substance satisfactory to the Representatives, addressed to the Initial Purchasers and dated as of the Execution Time (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Memorandum, as of a date not more than three days prior to the Execution Time), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers in connection with securities offerings of type contemplated by this Agreement. (f) With respect to the letter or letters of E▇▇▇▇ & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Partnership shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) None of the Partnership Entities shall have sustained since the date of the latest audited financial statements included in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement (i) any 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 Disclosure Package or the Final Memorandum (exclusive of any amendment or supplement thereto), or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree which is adverse to the Partnership Entities or (ii) since such date there ~~has~~ shall not have been ~~no material~~ any adverse change in the partners’ capital (other than the issuance of the Privately Placed Units and the Sponsor Class B Units), members’ equity or short-term or long-term debt of the Partnership Entities (other than the Securities) or any change, or any development involving a prospective adverse change, in or affecting the condition (financial ~~condition~~or otherwise), results of operations, securityholders’ equity, properties, management, business or ~~properties~~ prospects of the ~~Company and its subsidiaries~~Partnership Entities, ~~taken as a whole, whether or not arising from transactions in the ordinary course of business, except~~ otherwise than as set forth in or contemplated by in the Disclosure Package or 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 judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (dh) ~~At the Execution Time and at the Closing Date, the Company~~ The Securities shall have ~~requested~~ been designated as PORTAL eligible securities in accordance with the rules and ~~caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as~~ regulations of the ~~Execution Time~~ NASD and ~~as of~~ eligible for clearance and settlement through the ~~Closing Date, in form and substance satisfactory to the Representatives~~DTC. (ei) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have ~~occurred a~~ been any downgrading in the rating ~~assigned to the Securities or~~ of any of the ~~Company's first mortgage bonds or commercial paper~~ Partnership’s securities by any "“nationally recognized statistical rating ~~agency",~~ organization” (as ~~that term is~~ defined ~~by the Commission~~ for purposes of Rule ~~436(g)(2~~436(g) under the Act~~, and no~~ ) or any notice given of any intended or potential decrease in any such ~~securities~~ rating ~~agency~~ or of a possible change in any such rating that does not indicate the direction of the possible change. (j) The Representatives shall have ~~publicly announced~~ received evidence satisfactory to them that it (i) the Public Equity Offering has ~~under surveillance or review,~~ been consummated simultaneously with ~~possible negative implications, its rating~~ the consummation of the offering of the Securities ~~or any~~ and (ii) the acquisition of the ~~Company's other debt securities. (g) On~~ Four Corners Interest pursuant to the Four Corners Purchase and Sale Agreement shall have been consummated or will be consummated as of the Closing Date, in each case, on substantially the ~~Initial Purchasers shall have received~~ terms as described in the ~~Registration Rights Agreement duly executed~~ Disclosure Package and ~~delivered by~~ the ~~Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date~~Final Memorandum. (hk) Prior to the Closing Date, the ~~Company~~ Partnership shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (i)~~ . If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the ~~Company~~ Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the ~~office~~ offices of ~~counsel for the Company, at Sidley~~ A▇▇▇▇▇▇ ▇▇▇▇▇ ~~& ▇~~▇▇▇, ~~▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇~~counsel for the Issuers, at 6▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ~~▇▇▇▇~~4200, ~~▇▇▇▇▇▇▇~~Houston, ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~Texas 77002, on the Closing Date.

Appears in 1 contract

Sources: Purchase Agreement (Williams Partners L.P.)

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein at the ~~Execution~~ Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from ~~Winston & ▇▇▇▇▇▇~~Sidley Austin, special U.S. counsel for the ~~Initial Purchasers~~Company, such opinion or opinions, dated the Closing Date and addressed to the Representatives, ~~with respect~~ in a form reasonably acceptable to the ~~issuance~~ Representatives, and ~~sale~~ the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (b) The Representatives shall have received from Tian Yuan Law Office, PRC counsel for the ~~Securities~~Company and the Subsidiaries incorporated in the PRC, such opinion or opinions, in a form reasonably acceptable to the ~~Mortgage~~Representatives, ~~the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at~~ dated the Closing ~~Date)~~ Date and ~~other related matters as~~ addressed to the ~~Representatives may reasonably require~~Company, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Representatives shall have received from Commerce & Finance Law Offices, PRC counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Representatives shall have received from ▇▇▇▇▇▇▇, the Bermuda counsel for the Company, such opinion or opinions, in a form reasonably acceptable to the Representatives, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received from Sidley Austin, Hong Kong counsel for the Company, such opinion or opinions, in a form reasonably acceptable to the Representatives, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Representatives shall have received from Appleby, the British Virgin Islands counsel for the Company and the Subsidiaries incorporated in the British Virgin Islands, such opinion or opinions, in a form reasonably acceptable to the Representatives, dated the Closing Date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (h) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Treasurer~~ Chairman of the ~~Company~~board of directors or the Chief Executive Officer, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Disclosure Package and the Final Memorandum, any ~~amendment~~ supplements or ~~supplement to the Final Memorandum~~ amendments thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~in all material respects~~ on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum, there has been no material adverse change in the general affairs, management, business, financial condition, shareholders’ equity, results of operations or prospects of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; and (iii) the information circled in Schedule I thereto as it appears in the Disclosure Package, the Final Memorandum and the roadshow presentation is derived from, or calculated on the basis of information derived from, the business records and/or financial accounts of the Company and is true and accurate. (i) Each Subsidiary Guarantor shall have furnished to the Representatives a certificate of such Subsidiary Guarantor, signed by an executive officer or a director of such Subsidiary Guarantor, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Final Memorandum, any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the Subsidiary Guarantor (in the capacity of both a Subsidiary Guarantor and a Subsidiary Guarantor Pledgor, to the extent applicable) in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Subsidiary Guarantor has complied with all the agreements and satisfied all the conditions on its part (in the capacity of both a Subsidiary Guarantor and a Subsidiary Guarantor Pledgor, to the extent applicable) to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Disclosure Package and the Final ~~Memorandum (exclusive of any amendment or supplement thereto)~~Memorandum, there has been no material adverse change in the general affairs, management, business, financial condition, ~~business~~ shareholders’ equity, results of operations or ~~properties~~ prospects of the ~~Company~~ Subsidiary Guarantor (in the capacity of both a Subsidiary Guarantor and a Subsidiary Guarantor Pledgor, to the extent applicable) and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business~~, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)~~. (dj) The Company shall have provided to the Initial Purchasers approvals from its board of directors approving the issuance of the Notes. (k) Each Subsidiary Guarantor that is not a Subsidiary Guarantor Pledgor shall have provided to the Initial Purchasers approvals from the shareholders and board of directors of the Subsidiary Guarantor approving the issuance by such Subsidiary Guarantor of its Subsidiary Guarantee. (l) At ~~the Execution Time and at~~ the Closing Date, the Company shall have ~~requested and caused PricewaterhouseCoopers LLP~~ received approval in- principle for the Securities to ~~furnish~~ be listed on the SGX-ST. (m) Announcements to the ~~Representatives letters, dated respectively as~~ shareholders of the ~~Execution Time and as~~ Company in connection with the offering of the ~~Closing Date~~Securities shall have been published in accordance with the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong Limited. (n) Each Subsidiary Guarantor Pledgor shall have provided to the Initial Purchasers approvals from the shareholders and board of directors of the Subsidiary Guarantor Pledgor approving (i) the issuance by such Subsidiary Guarantor Pledgor of its Subsidiary Guarantee and (ii) the execution by such Subsidiary Pledgor of the Supplement to ICA to which such Subsidiary Pledgor is a party and the subsequent obligations imposed on the Subsidiary Guarantor Pledgor by the Share Charges and the Intercreditor Agreement. (o) The Indenture, the Supplement to ICA and the Securities shall have been duly executed and delivered and shall be in ~~form~~ full force and ~~substance satisfactory~~ effect, and true and complete copies thereof shall have been delivered to the Representatives. (ep) ~~Subsequent~~ The Company, the Subsidiary Guarantors and the Subsidiary Guarantor Pledgors shall have provided the Initial Purchasers with such other certificates, letters and documents relating to the ~~Execution Time or, if earlier,~~ transactions contemplated hereby as the ~~dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not~~ Initial Purchasers may have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as reasonably set forth in ~~or contemplated in~~ the ~~Final Memorandum (exclusive~~ memorandum of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after closing dated the Closing Date. (hq) ~~Prior to~~ The Representatives shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, ~~the Company shall have furnished to the Representatives such further information, certificates and documents~~ as the ~~Representatives~~ case may ~~reasonably request. (i) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement~~be, ~~or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory~~ in form and substance reasonably satisfactory to the ~~Representatives~~ Representatives, from PricewaterhouseCoopers, containing statements and ~~counsel for the Initial Purchasers, this Agreement and all obligations~~ information of the ~~Initial Purchasers hereunder may be cancelled at, or at any time prior to,~~ type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained in the Disclosure Package and the Final Memorandum; provided that the letter delivered on the date hereof and the Closing Date by shall use a “cut-off date” not earlier than the ~~Representatives. Notice of such cancellation shall be given~~ date that is three Business Days prior to the ~~Company in writing~~ date hereof or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.the

Appears in 1 contract

Sources: Purchase Agreement

Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the ~~Securities~~ Units shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution ~~Time~~ Time") and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) ~~Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company,~~ The Company shall have furnished to the ~~Representatives its opinion~~Initial Purchasers the opinion of Kronish, ~~dated the Closing Date and addressed to the Representatives~~Lieb, ~~in form and substance satisfactory to each of the Representatives and its counsel. (b) The Representatives shall have received from Winston~~ Weiner & ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, in form and substance reasonably acceptable to the Initial Purchasers to the effect that: (i) The Company has been duly incorporated and is validly existing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Final Memorandum and to enter into and perform its obligations under this Agreement, the Indenture, the Registration Agreement and the Escrow Agreement; (ii) The Company has all requisite corporate power and authority to issue the Securities; (iii) The authorized, and to the knowledge of such counsel based solely upon a review of the Company's stock ledger and corporate records, the issued and outstanding capital stock of the Company is as set forth in the Final Memorandum under the caption "Capitalization"; (iv) Each of this Agreement, the Registration Agreement, the Escrow Agreement, the Common Stock Registration Rights Agreement, the Securities, the Exchange Securities and the Indenture has been duly authorized by the Company; (v) No consent, approval, authorization, license, qualification or order of or filing or registration with, any court or governmental or regulatory agency or body of the United States or the State of New York or the General Corporation Law of the State of Delaware is required for the execution and delivery by the Company of this Agreement, the Registration Agreement, the Escrow Agreement, the Common Stock Registration Rights Agreement or the Indenture or for the issue and sale of the Securities or the Exchange Securities or the consummation by the Company of any of the transactions contemplated herein or therein, except such as may be required (A) in connection with the registration under the Securities Act of the Notes or the Exchange Securities, pursuant to the Registration Agreement, and the registration under the Securities Act of the Shares, pursuant to the Common Stock Registration Rights Agreement, (B) the qualification of the Indenture under the TIA in connection with the registration of the Securities or the Exchange Securities pursuant to the Registration Agreement, and the registration under the Securities Act of the Shares, pursuant to the Common Stock Registration Rights Agreement, (C) under the "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Units by the Initial Purchasers (as to which such counsel need express no opinion), (D) under the Rules and Regulations of the FCC ("FCC Rules") or under any rules or regulations of any State regulatory commissions ("State Rules") responsible for the regulation of cable/telecommunications services (as to which counsel need express no opinion) and (E) such as have been obtained or made, as the case may be; (vi) The issuance, sale and delivery of the Securities and the Exchange Securities, the execution, delivery and performance by the Company of this Agreement, the Registration Agreement, the Escrow Agreement, the Common Stock Registration Rights Agreement and the Indenture (in each case assuming due authorization and execution by each party other than the Company) and the consummation by the Company of the transactions contemplated hereby and thereby and the compliance by the Company with the terms of the foregoing do not, and, at the Closing Date, will not, conflict with or constitute or result in a breach or violation by the Company or any of the Subsidiaries of (A) any provision of the Certificate of Incorporation or By-laws of the Company, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Company, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under any material agreements or instruments known to such counsel or (C) any law, statute, rule, or regulation (except for the FCC Rules and State Rules to which counsel need express no opinion) of the United States or the State of New York or under the General Corporation Law of the State of Delaware or any order, decree or judgment known to such counsel to be applicable to the Company or any Subsidiary, of any court or governmental or regulatory agency or body or arbitrator in the United States or the States of New York or Delaware. (vii) The statements in the Offering Memorandum under the headings "Summary - The Offering," "Description of the Units," "Description of the Notes," "Description of Common Stock Registration and Other Rights" and "Exchange Offer; Registration Rights," insofar as such statements purport to summarize certain provisions of the Securities, the Exchange Securities, the Registration Agreement, the Escrow Agreement, the Common Stock Registration Rights Agreement and the Indenture provide a fair summary of such provisions of such agreements and instruments; (viii) Each of the Indenture, the Registration Agreement, the Escrow Agreement and the Common Stock Registration Rights Agreement (assuming due authorization and execution by each party thereto other than the Company) constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except (a) with respect to the Indenture, the Common Stock Registration Rights Agreement and the Registration Agreement, the Enforceability Limitations, and (b) with respect to the Registration Agreement, the Common Stock Registration Rights Agreement and the Escrow Agreement, that such counsel expresses no opinion regarding the validity and enforceability of the indemnification and contribution provisions contained in Sections 7, 5 and 5, respectively, thereof; (ix) Each of the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Securities when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations; the Shares when executed, authenticated and delivered, will be entitled to the benefits of the Common Stock Registration Rights Agreement and will be valid and binding obligations of the Company, enforceable in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations; (x) The issuance of the Shares has been duly and validly authorized, and the Shares, when paid for and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable, and no holder of any securities of the Company has preemptive or similar rights applicable to the Shares; (xi) The Escrow Agreement has been duly authorized, executed and delivered by the Company; (xii) The Escrow Agreement creates a valid security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral (such counsel need not express an opinion as to the perfection or priority of the security interest in the Collateral created by the Escrow Agreement); (xiii) Assuming that the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement are true, correct and complete, and assuming compliance by the Initial Purchasers with their covenants in Section 4 hereof, and assuming that the representations and warranties contained in the Accredited Investor Letters completed by Accredited Investors and deemed made by "qualified institutional buyers" and non-U.S. persons purchasing Units from the Initial Purchasers are true and correct as of the Closing Date, it is not necessary in connection with the offer, sale and delivery of the Units to the Initial Purchasers under, or in connection with the initial resale of the Units by the Initial Purchasers in accordance with, this Agreement for the Company to register the Units under the Securities Act or to qualify the Indenture under the TIA; (xiv) Neither the Company nor any of the Subsidiaries is an "investment company" or a company "controlled by" or required to register as an investment company as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder; (xv) When the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of the Company which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system; and (xvi) The statements in the Final Memorandum under the caption "Certain Federal Income Tax Considerations" provide a fair summary of the material tax consequences of owning Securities. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent certified public accountants of the Company and the Initial Purchasers and their representatives at which the contents of the Final Memorandum and related matters were discussed and, although we have not undertaken to investigate or verify independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as indicated above), on the basis of the foregoing, they have no reason to believe that at the Execution Time and the Closing Date the Final Memorandum contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein, in the light of the circumstances under which they were made, not misleading or that the Final Memorandum includes an untrue statement of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the laws of the State of New York, the general corporate laws of the State of Delaware or the laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to Counsel for the Initial Purchasers, ~~such opinion or opinions~~including Goldberg, ~~dated the Closing Date~~ Godles, Weiner & ▇▇▇▇▇▇ and ~~addressed~~ (B) as to matters of fact, to the ~~Representatives~~extent they deem proper, ~~with respect to the issuance and sale~~ on certificates of responsible officers of the ~~Securities, the Mortgage, the Registration Rights Agreement,~~ Company and public officials. All references in this Section 6(a) to the Final Memorandum ~~(as amended~~ shall be deemed to include any amendment or ~~supplemented~~ supplement thereto at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (cb) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (d) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (f) On the Closing Date, (i) the Securities shall be rated "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A-" by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (g) On the Closing Date, the Initial Purchasers ~~shall have received~~ the Registration Rights Agreement duly executed and delivered by the Company and such agreement shall be in full force and effect according to its terms at all times from and after the Closing Date. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) If any opinion of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~, ▇▇▇▇▇ ▇▇▇▇, ▇▇~~▇▇▇▇▇, ~~▇▇▇▇▇▇▇▇ ▇▇▇▇▇~~Vice President, on Legal Affairs and General Counsel of the Company, dated the Closing Date., in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that: (i) Each of the Company and the Subsidiaries and the LHC has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify would not have a Material Adverse Effect; (ii) All the outstanding shares of capital stock of the Company and the LHC and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in Schedule II to the Purchase Agreement, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through other Subsidiaries free and clear of any security interests, liens or encumbrances; (iii) The issuance, sale and delivery of the Securities and the Exchange Securities, the execution, delivery and performance by the Company of this Agreement, the Registration Agreement, the Escrow Agreement, the Common Stock Registration Rights Agreement and the Indenture (in each case assuming due authorization and execution by each party other than the Company) and the consummation by the Company of the transactions contemplated hereby and thereby and the compliance by the Company with the terms of the foregoing do not, and, at the Closing Date, will not, conflict with or constitute or result in a breach or violation by the Company or any of the Subsidiaries of (A) any provision of the Certificate of Incorporation or By-laws of the Company or any of the Subsidiaries, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Company or any of the Subsidiaries, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation of imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Subsidiaries under any material agreements or instruments known to such counsel or (C) any order, decree or judgment known to such counsel to be applicable to the Company or any Subsidiary, of any court or governmental or regulatory agency or body or arbitrator in the United States or the States of New York or Delaware; (iv) The statements in the Final Memorandum under the headings "Risk Factors - Risks Associated with Rights of Entry," and "-- Use of the Name OpTel" fairly summarizes the legal matters therein described; (v) To the knowledge of such counsel (no search of court or administrative records having been made), no material legal or governmental or regulatory proceedings (including proceedings by or before the FCC) are pending to which the Company or any of the Subsidiaries or the LHC is a party or to which the business of the Company or any of the Subsidiaries or the LHC are subject that are not described or reflected therein as required, and no such proceedings have been threatened against the Company or any of the Subsidiaries or the LHC or with respect to any of their assets; and there is no material contract, agreement or other document not described or referred to in the Final Memorandum; (vi) To counsel's knowledge, (i) no application, action, complaint, investigation or proceeding is pending or directly threatened that is likely to result in the denial of any pending application for the renewal, modification or assignment of any of the licenses, special temporary authorizations, conditional licenses, construction permits and other authorizations issued by the FCC in favor of the Company and the Subsidiaries and the LHC (collectively, "FCC Authorizations") for the conduct of their business as described in the Final Memorandum, and (ii) except for proceedings of general applicability, there are no proceedings or actions pending that could result in the revocation, materially adverse modification or suspension of any of the FCC Authorizations, the is

Appears in 1 contract

Sources: Purchase Agreement (Optel Inc)

Common use of Conditions to the Obligations of the Initial Purchasers Clause in Contracts