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 of the Company contained herein at the Execution Time, the 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: (a) The Company shall have requested and caused Fenwick & West LLP, 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 Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and 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, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect; (ii) Reserved; (iii) the Company’s authorized equity capitalization is as set forth in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the Securities; (iv) the Indentures have been duly authorized, executed and delivered by the Company, and constitute legal, valid and binding instruments enforceable against the Company in accordance with their respective terms (subject, as to 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 Securities will be convertible into Common Stock in accordance with the terms of the applicable Indenture; (v) the Securities have been duly authorized and executed by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, as to 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); (vi) the statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indentures, the Registration Rights Agreement and the Common Stock, or matters of applicable tax law and regulations, provide in all material respects an accurate and fair summary of such provisions, laws and regulations;
Appears in 1 contract
Sources: Purchase Agreement (Symantec 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, Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is 15 15 executed and delivered by the parties hereto (the "Execution Time"), and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy in all material respects 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 Fenwick entered into a Registration Rights Agreement with the Representatives in the form attached hereto as Exhibit A.
(b) The Company shall have furnished to the Representatives the opinion of Milbank, Tweed, Hadl▇▇ & West LLP▇cCl▇▇, counsel ▇▇unsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the RepresentativesDate, substantially to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Memorandum, Delaware 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 qualificationqualification wherein it owns or leases material properties or conducts material business, except for in such jurisdictions where in which the failure to be in good standingso qualify, have such corporate power or authority, or to so qualify would not, individually singly or in the aggregate, would not have a Material Adverse Effect;
(ii) ReservedEach of the subsidiaries of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized 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 in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;
(iii) the Company’s authorized equity Company has the authorized, issued and outstanding capitalization is as set forth in the Final Memorandum under the heading “caption "Capitalization” and the capital stock ." All of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company have been duly authorized and validly issued and are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the Securitiesfully paid and nonassessable;
(iv) the Indentures issued shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except for directors' qualifying shares and except as 16 16 otherwise set forth in the Final Memorandum are owned of record and beneficially by the Company, either directly or through wholly owned subsidiaries, free and clear of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) each of the Registration Rights Agreement, the Indenture and the New Bank Credit Agreement have been duly authorized, executed and delivered by the Company, Company and constitute constitutes a legal, valid and binding instruments obligations of the Company, enforceable against the Company in accordance with their respective terms its terms, except as the same may be limited by (subject, as to enforcement of remedies, to A) applicable bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws affecting creditors’ ' rights generally from time to time in generally, including without limitation the effect and to of statutory or other laws regarding fraudulent conveyances or transfers or preferential transfer, or (B) 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 at law or at law) equity, and except as rights to indemnity and contribution in the Securities will Registration Rights Agreement may be convertible into Common Stock in accordance with the terms of the applicable Indenturelimited by federal or state securities law or public policy;
(vvii) the Securities Notes have been duly authorized and executed by the Company and, when executed and authenticated in accordance with the terms provisions of the applicable Indenture and delivered against payment therefor 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 applicable Indenture and enforceable against the Company in accordance with their terms, except as may be limited by (subject, as to enforcement of remedies, to A) applicable bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws affecting creditors’ ' rights generally from time to time in generally, including without limitation the effect and to of statutory or other laws regarding fraudulent conveyances or transfers or preferential transfers or (B) 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 at law or at law)equity;
(viix) the statements set forth under issuance, offering and sale of the headings “Description Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of Notes”. “Registration Rights”, “Description of Capital Stock” this Agreement and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the SecuritiesRegistration Rights Agreement, the IndenturesIndenture, the Registration Rights Agreement Notes and the Common StockNew Bank Credit Agreement do not (A) require the consent, approval, authorization, order, registration or qualification of or with any governmental authority or court, except such as may be required under state securities or blue sky laws or (B) conflict with, result in a breach or violation of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to the charter or by-laws of the Company or any of the subsidiaries of the Company, or, to the best knowledge of such counsel, any material contract, loan agreement, note, indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Company or any of the subsidiaries of the Company is a party or by which the Company or any of the subsidiaries of the Company, or any of their respective properties is bound, or any statute, rule or regulation or, to the best knowledge of such counsel, any judgment, order or decree of any governmental authority or court or arbitrator applicable to the Company or any of the subsidiaries of the Company;
(x) assuming the accuracy of the representations and warranties of the Initial Purchasers and compliance by it with its agreements contained herein, no registration of the Notes under the Securities Act is required, and no qualification of the Indenture under the Trust Indenture Act of 1939 is necessary, for the offer and sale by the Initial Purchasers of the Notes in the manner contemplated by this Agreement; and
(xi) 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 securities of the Company. 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 the Final Memorandum as the same may be amended or supplemented includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements 18 18 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 State of New York, the State of Delaware 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 Counsel for the Initial Purchasers and (B) as to matters of applicable tax law fact, to the extent they deem proper, on certificates of responsible officers of the Company and regulationspublic officials. All references in this Section 6(b) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the Closing Date.
(c) The Initial Purchasers shall have received from Shearman & Sterling, provide Counsel for the Initial Purchasers such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Notes and other related matters as the 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;
(d) (i) the representations and warranties of the Company in this Agreement shall be true and correct in all material respects an accurate on and fair summary as of such provisionsthe Closing Date with the same effect as if made on the Closing Date, laws and regulationsthe Company shall 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;
Appears in 1 contract
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 as of the date hereof, at the Execution Time, Time of Sale and as of the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 Fenwick furnished to the Representatives the opinion of ▇▇▇▇▇ & West ▇▇▇▇▇▇▇▇▇ LLP, counsel for to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) the Company has been is a corporation duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the State of DelawareOhio;
(ii) each significant subsidiary (as defined in Rule 405) of the Company is a corporation duly incorporated, with full corporate power validly existing and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each its jurisdiction which requires such qualification, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) Reservedof incorporation;
(iii) the Company’s authorized equity capitalization is as set forth in the Final Memorandum except for permits and similar authorizations required under the heading “Capitalization” securities or Blue Sky laws of certain jurisdictions (as to which such counsel need not express an opinion), no consent, approval, authorization or other order of any regulatory body, administrative agency or other governmental body is legally required for the valid issuance and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion sale of the Securities have been duly authorized and, when issued upon conversion of to the Securities, will be validly issued, fully paid and nonassessable; Initial Purchasers in the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the Securitiesmanner contemplated by this Agreement;
(iv) except as contemplated by the Indentures have Registration Rights Agreement, no registration under the Act, and no qualification of an indenture under the Trust Indenture Act, is required for the offer and sale of the Securities to the Initial Purchasers or the initial resale of Securities by the Initial Purchasers, in each case in the manner contemplated by this Agreement, the Time of Sale Information and the Final Offering Memorandum.;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Indenture has been duly and validly authorized, executed and constitute legaldelivered by the Company and, assuming due execution and delivery by the Trustee, is a valid and binding instruments agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting enforcement of the rights and remedies of creditors or by general principles of equity, and has been duly qualified under the Trust Indenture Act;
(vii) the Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company, and, assuming due execution and delivery by the Representatives, is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting enforcement of the rights and remedies of creditors or by general principles of equity and, except further, as enforcement of rights to indemnification and contribution contained therein may be limited by applicable U.S. federal or state laws or the public policy underlying such laws;
(viii) the Securities have been duly and validly authorized and executed by the Company and, assuming due authentication of such Securities by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms of this Agreement, will have been validly issued and delivered, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms (subjectterms, except as to the enforcement of remediesthereof may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencymoratorium, moratorium or other similar laws relating to or affecting creditors’ enforcement of the rights generally from time to time in effect and to remedies of creditors or by 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 Securities will be convertible into Common Stock in accordance with entitled to the terms benefits of the applicable Indenture;
(vix) the Securities Exchange Notes have been duly and validly authorized and executed for issuance by the Company andCompany, and when issued and authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, as to 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);
(vi) the statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the IndenturesIndenture, the Registration Rights Agreement and the Common StockExchange Offer, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting enforcement of the rights and remedies of creditors or by general principles of equity, and will be entitled to the benefits of the Indenture;
(x) the statements in the Time of Sale Information and the Final Offering Memorandum under the captions “Description of notes” and “Plan of distribution,” insofar as such statements constitute a summary of the documents and other legal matters referred to therein, fairly summarize such documents and matters in all material respects;
(xi) there are no legal or governmental proceedings known to such counsel pending or threatened required to be described in the Time of applicable tax law Sale Information or the Final Offering Memorandum which are not described as required, and regulationsthere is no contract or document known to such counsel of a character required to be described in the Time of Sale Information or the Final Offering Memorandum;
(xii) the documents incorporated by reference in the Time of Sale Information and the Final Offering Memorandum (other than the financial statements and financial schedules therein, provide as to which no opinion need be rendered), when they were filed with the Commission, complied as to form in all material respects an accurate with the requirements of the Exchange Act; and
(xiii) the execution, delivery and fair summary performance of this Agreement, the Indenture, the Securities, the Registration Rights Agreement and the DTC Agreement, compliance by the Company with all provisions hereof and thereof and the consummation by the Company of the transactions contemplated hereby and thereby do not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the certificate or articles of incorporation or bylaws or code of regulations of the Company or any of its significant subsidiaries or any agreement, indenture or other instrument known to such counsel to which the Company or any of its significant subsidiaries is a party or by which any of them is bound which conflict or default would have a Material Adverse Effect and except where such breach or default would not have a material adverse effect on the ability of the Company to perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Securities, or (assuming compliance with all applicable state securities and Blue Sky laws and without opining as to the enforceability of rights of indemnity or contribution under applicable law) violate any law, administrative regulation or ruling or court decree known to such counsel applicable to the Company or any of its significant subsidiaries or any of their respective property which violation would have a Material Adverse Effect and except where such breach or default would not have a material adverse effect on the ability of the Company to perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Securities. In rendering the opinion set forth above, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may (A) assume that New York law is substantially similar to Ohio law with respect to the opinions delivered in subsections (vi), (vii), (viii) and (ix) concerning the valid and binding nature of the obligations of the Indenture and the Securities; (B) assume the genuineness without independent investigation, of all signatures on all documents examined by such firm, the conformity to original documents of all documents submitted to such firm as certified or facsimile copies and the authenticity of all such documents; and (C) rely as to matters of law of any State other than Ohio upon the opinion of counsel licensed to practice in such state and satisfactory to the Representatives (provided that such opinion shall state that the Representatives and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP are entitled to so rely) and as to certain matters of fact, upon certificates and written statements of officers and employees of, and accountants for, the Company. Such counsel shall have also furnished to the Representatives a written statement dated the Closing Date to the effect that, based upon their participation in the preparation of the Time of Sale Information and the Final Offering Memorandum and any amendments and supplements thereto and upon their review and discussion of the contents thereof, but without independent check or verification except as specified, nothing has come to such counsel’s attention which would lead them to believe that the Time of Sale Information contained any untrue statement of any material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Offering Memorandum (as amended or supplemented, if applicable) as of its date or the Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that, in rendering the opinion in (xii) above and the written statement referred to in the preceding sentence, they are not expressing any opinion on the financial statements and financial exhibits and other financial data included therein or omitted therefrom and that they are not responsible for the adequacy or accuracy of the derivation or compilation from the Company’s accounting records of the financial data included in the Time of Sale Information or the Final Offering Memorandum and any amendments and supplements thereto.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, Associate General Counsel of the Company, dated the Closing Date, to the effect that there are no legal or governmental proceedings known to such counsel pending or threatened required to be described in the Time of Sale Information or the Final Offering Memorandum which are not described as required, and there is no contract or document known to such counsel of a character required to be described in the Time of Sale Information or the Final Offering Memorandum. Such counsel shall have also furnished to the Representatives a written statement dated the Closing Date to the same effect as that set forth in the last paragraph of the preceding clause (a).
(c) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Time of Sale Information, the Final Offering Memorandum 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.
(d) The Company shall have furnished to the Representatives a certificate of the Company signed by the Chairman of the Board, the President or any Vice President of the Company dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company 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 Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) since the date of the most recent financial statements included in the Time of Sale Information and the Final Offering Memorandum, there has been no material adverse change in the financial condition, earnings, business, properties or results of operations of the Company and its subsidiaries on a consolidated basis, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Time of Sale Information and the Final Offering Memorandum.
(e) At the date of this Agreement and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives letters (which, with respect to any letter delivered on the Closing Date, may refer to letters previously delivered to the Representatives, a copy of which shall be attached, in which case the letter provided at the Closing Date shall state that the previous letter can be relied on), dated respectively as of the date of this Agreement 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 initial purchasers with respect to the financial statements and certain financial information contained in or incorporated by reference in the Time of Sale Information and the Final Offering Memorandum.
(f) Subsequent to the respective dates as of which information is given in the Time of Sale Information (exclusive of any supplement thereto) and the Final Offering Memorandum (exclusive of any supplement thereto) and prior to the Closing Date, there shall not have been any change, or any development involving a prospective change, in or affecting the business, properties or results of operations of the Company and its subsidiaries on a consolidated basis, the effect of which is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical to proceed with the offering or the delivery of the Securities as contemplated by the Time of Sale Information and the Final Offering Memorandum.
(g) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have been any downgrading in the ratings of any of the Company’s debt securities, by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act or any public announcement by any such organization that it has under surveillance or review with negative implications, its rating of any of the Company’s debt securities (or proposed rating of the Securities).
(h) The Company shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(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. If any of the conditions specified in this Section 5 shall not have been fulfilled to the reasonable satisfaction of the Representatives 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 to the reasonable satisfaction of the Representatives and their counsel, this Agreement and all obligations of the Initial Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such provisions, laws and regulations;cancellation shall be given to the Company by telephone or in the manner described in Section 14 hereof.
Appears in 1 contract
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 of the Company and the Guarantors contained herein at the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company 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) The Company shall have requested and caused Fenwick ▇▇▇▇▇ ▇▇▇▇▇▇ & West ▇▇▇▇▇▇ LLP, 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) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(f)), no registration under the Act of the Securities, and no qualification of an indenture under the Trust Indenture Act, are required for the sale and delivery of the Securities by the Company to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities in the manner contemplated herein, in the Disclosure Package and in the Final Memorandum;
(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, an “investment company” as defined in the Investment Company Act;
(iii) except as described in the Disclosure Package and the Final Memorandum, 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 to which the Company or any of its subsidiaries is a party or of which its or their property is the subject, except in each case for such proceedings that would not singly or in the aggregate reasonably be expected to have a Material Adverse Effect; and the statements in the Preliminary Memorandum and the Final Memorandum under the headings “Material United States Federal Income Tax Considerations,” “Description of the Notes” and “Certain ERISA Considerations,” insofar as they purport to constitute summaries of (i) matters of United Stated federal tax law and regulations or legal conclusions with respect thereto, (ii) the terms of statutes, rules or regulations, or (iii) certain provisions of the Indenture and the Securities, constitute accurate summaries of such matters in all material respects;
(iv) each of the Company and the subsidiaries listed on Annex A attached hereto (individually, a “Subsidiary” and collectively, the “Subsidiaries”) has been duly incorporated or formed and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate or limited liability company power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Memorandum, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification, except for such the respective jurisdictions where listed on Exhibit A to the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effectopinion;
(ii) Reserved;
(iiiv) the Company’s authorized equity capitalization is as set forth Securities conform in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms all material respects to the description thereof contained in the Disclosure Package and the Final Memorandum; ;
(vi) all the Securities conform outstanding shares of capital stock or membership interests of the Company and each Subsidiary have been duly authorized and validly issued and with respect to the description thereof contained Subsidiaries that are corporations, are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of all outstanding shares of capital stock or membership interests of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest known to such counsel other than under the Credit Facility.
(vii) none of the execution and delivery of the Registration Rights Agreement or this Agreement, the issuance and sale of the Securities, nor the performance of the obligations hereunder, thereunder or under the Indenture by the Company and the Guarantors 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 are not entitled to or of any preemptive rights to subscribe for of its Subsidiaries pursuant to, (i) the Securities charter or for the shares of Common Stock issuable upon conversion by-laws of the SecuritiesCompany or the charter, by-laws or certificate of formation or operating agreement of any of its Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, covenant or instrument to which the Company or any of its Subsidiaries is a party or bound or to which its or their property is subject included on Schedule IV hereto; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any New York, Delaware, Colorado or U.S. federal 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 (ii) and (iii) above, for any such breach or violation that would not reasonably be expected to have a Material Adverse Effect and except with respect to the Credit Facility, on which we express no opinion;
(ivviii) the Indentures have this Agreement has been duly authorized, executed and delivered by the Company; and the Registration Rights Agreement has been duly authorized, executed and constitute delivered by the Company; and the statements in the Preliminary Memorandum and Final Memorandum under the heading “Description of Notes,” insofar as such statements purport to summarize certain provisions of the Registration Rights Agreement, are accurate summaries in all material respects;
(ix) the Indenture has been duly authorized, executed and delivered by the Company and the Guarantors, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a legal, valid and binding instruments instrument enforceable against the Company in accordance with their respective its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Securities have been duly authorized by the Company and the Guarantors and, when executed and authenticated by the Trustee 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, binding and enforceable 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 Securities will be convertible into Common Stock in accordance with the terms of the applicable Indenture);; and
(vx) no consent, approval, authorization, filing with or order of any court or governmental agency or body having jurisdiction over the Securities have been duly authorized and executed Company or any of its Subsidiaries is required to be made by the Company andor any of its Subsidiaries under the federal laws of the United States of America, when authenticated the laws of the State of New York, the laws of the State of Colorado, the Delaware General Corporation Law, and the Delaware Limited Liability Company Act that in accordance our experience normally would be applicable to general business entities for the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except for (i) the filing of one or more registration statements or amendments to existing registration statements by the Company with the terms U.S. Securities and Exchange Commission pursuant to the Act as required by the Registration Rights Agreement, (ii) the filing by the Company of a Form 8-K to report the transactions contemplated by the Agreement, (iii) such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under blue sky or securities laws of any jurisdiction in which the Securities are offered or sold in connection with the purchase and distribution of the applicable Indenture Securities by the Initial Purchasers; and delivered against payment therefor pursuant to this Agreement(iv) such other approvals as have been obtained. In addition, will constitute legal▇▇▇▇▇, valid ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall state that, although such counsel has not independently verified, and binding obligations is not passing on and does not pass on or assume responsibility for, the accuracy, completeness or fairness of the Company entitled to statements contained in the benefits of the applicable Indenture (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium Disclosure Package 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);
(vi) the statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar no facts have come to the attention of such counsel that would cause it to believe that (i) the Disclosure Package, as amended or supplemented at the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial or reserve information contained therein, as to which such counsel need express no opinion), and (ii) the Final Memorandum, as of its date or on 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 purport therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements (including the notes thereto) and other financial and reserve information contained therein, as to summarize certain provisions which such counsel need express no opinion). 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(a) include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to furnish the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that none of the execution and delivery of the Registration Rights Agreement or this Agreement, the issuance and sale of the Securities, nor the performance of the obligations hereunder, thereunder or under the Indenture by the Company and the Guarantors 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 the Credit Facility.
(c) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 IndenturesIndenture, 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 request for the purpose of enabling them to pass upon such matters.
(d) The Company and each Guarantor shall have furnished to the Representatives a certificate, signed by the Company’s and each Guarantors’ (x) the Chairman of the Board or the President and (y) the principal financial or accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that:
(i) the Common Stockrepresentations and warranties of the Company and the Guarantors in this Agreement are true and correct in all materials respects (except to the extent already qualified by materiality, in which case such representations are true and correct in all 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 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 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).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, confirming that they are a registered public accounting firm and independent accountants within the meaning of the Exchange Act and substantially in the form of Exhibit A hereto.
(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, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(g) 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, confirming that they were a registered public accounting firm and independent accountants within the meaning of the Exchange Act and substantially in the form of Exhibit B hereto.
(h) At the Execution Time and the Closing Date, the Company shall have requested and caused Netherland, ▇▇▇▇▇▇ & Associates, Inc. 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 petroleum engineers and covering certain matters relating to information about the reserves of applicable tax law the Company presented in the Disclosure Package and regulationsFinal Memorandum.
(i) At the Execution Time and the Closing Date, provide the Representatives shall have received certificates, dated as of the Execution Time and the Closing Date, of the chief financial officer of the Company, in all material respects an accurate customary form and fair summary of such provisions, laws and regulations;substance reasonably satisfactory to the Repre
Appears in 1 contract
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 Guarantors contained herein at the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, 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 or their obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Fenwick Holland & West Knight LLP, counsel for the CompanyCompany and the Guarantors, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Company and each Guarantor which is a Florida, New York or Delaware corporation or limited liability company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate or limited liability company power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Memorandum, and is duly qualified to do transact business as a foreign corporation entity and is in good standing under the laws of each jurisdiction in which the character of its business requires such qualification, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify qualified would not, individually or in the aggregate, not have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole;
(ii) Reserved;
(iii) all the Company’s authorized equity capitalization is as set forth in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company and, to our knowledge, each Guarantor, have been duly authorized and validly issued and are not entitled to any preemptive rights to subscribe for fully paid and nonassessable, and, except as otherwise set forth in the Securities or for the Final Memorandum, all outstanding shares of Common Stock issuable upon conversion capital stock of the SecuritiesGuarantor are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest;
(iviii) the Indentures have Indenture has been duly authorized, executed and delivered by the Companydelivered, and constitute constitutes a legal, valid and binding instruments instrument enforceable against the Company and the Guarantors in accordance with their respective 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 ); the issuance of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and the Securities will be convertible into Common Stock has been duly authorized and, when executed and, in the case of the Notes, authenticated, in accordance with the terms provisions of the applicable Indenture;
(v) the Securities have been duly authorized and executed by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to and paid for by the Initial Purchasers under this Agreement, will constitute legal, valid valid, binding and binding enforceable obligations of the Company and the Guarantors entitled to the benefits of the applicable 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); the Registration Rights Agreement has been duly authorized, includingexecuted and delivered and constitutes the legal, without limitationvalid, concepts binding and enforceable agreement of materialitythe Company and the Guarantors (subject, reasonablenessas to the enforcement of remedies, good faith to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and fair dealing, regardless to general principles of whether considered in a proceeding in equity or at lawequity);
(vi) ; and the statements set forth under the headings “"Description of the Notes”. “" and "Exchange Offer; Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” " in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indentures, Indenture and the Registration Rights Agreement Agreement, are accurate;
(iv) other than as described in the Final Memorandum, 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 would be required to be disclosed in a registration statement filed under the Act; and the Common statements in the Final Memorandum under the heading "Business--Legal Proceedings," "Description of Material Indebtedness and Preferred Stock, or ," "Description of the Notes," "Exchange Offer; Registration Rights" and "Important Federal Income Tax Considerations" accurately summarize the matters of applicable tax law and regulations, provide in all material respects an accurate and fair summary of such provisions, laws and regulationstherein described;
Appears in 1 contract
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 of the Company and the Guarantors contained herein at the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company 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) The Company shall have requested and caused Fenwick ▇▇▇▇▇ ▇▇▇▇▇▇ & West ▇▇▇▇▇▇ LLP, 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) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(f)), no registration under the Act of the Securities, and no qualification of an indenture under the Trust Indenture Act, are required for the sale and delivery of the Securities by the Company to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities in the manner contemplated herein, in the Disclosure Package and in the Final Memorandum;
(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, an “investment company” as defined in the Investment Company Act;
(iii) except as described in the Disclosure Package and the Final Memorandum, 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 to which the Company or any of its subsidiaries is a party or of which its or their property is the subject, except in each case for such proceedings that would not singly or in the aggregate reasonably be expected to have a Material Adverse Effect; and the statements in the Preliminary Memorandum and the Final Memorandum under the headings “Material United States Federal Income Tax Considerations,” “Description of the Notes” and “Certain ERISA Considerations,” insofar as they purport to constitute summaries of (i) matters of United Stated federal tax law and regulations or legal conclusions with respect thereto, (ii) the terms of statutes, rules or regulations, or (iii) certain provisions of the Indenture and the Securities, constitute accurate summaries of such matters in all material respects;
(iv) each of the Company and the subsidiaries listed on Annex A attached hereto (individually, a “Subsidiary” and collectively, the “Subsidiaries”) has been duly incorporated or formed and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate or limited liability company power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Memorandum, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification, except for such the respective jurisdictions where listed on Exhibit A to the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effectopinion;
(ii) Reserved;
(iiiv) the Company’s authorized equity capitalization is as set forth Securities conform in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms all material respects to the description thereof contained in the Disclosure Package and the Final Memorandum; ;
(vi) all the Securities conform outstanding shares of capital stock or membership interests of the Company and each Subsidiary have been duly authorized and validly issued and with respect to the description thereof contained Subsidiaries that are corporations, are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of all outstanding shares of capital stock or membership interests of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest known to such counsel that are perfected solely by filing under the Delaware Uniform Commercial Code.
(vii) none of the execution and delivery of the Indenture, the Registration Rights Agreement or this Agreement, the issuance and sale of the Securities, nor the performance of the obligations hereunder or thereunder by the Company and the Guarantors 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 are not entitled to or of any preemptive rights to subscribe for of its Subsidiaries pursuant to, (i) the Securities charter or for the shares of Common Stock issuable upon conversion by-laws of the SecuritiesCompany or the charter, by-laws or certificate of formation or operating agreement of any of its Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, covenant or instrument to which the Company or any of its Subsidiaries is a party or bound or to which its or their property is subject included on Schedule IV hereto; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any New York, Delaware, Colorado or U.S. federal 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 (ii) and (iii) above, for any such breach or violation that would not reasonably be expected to have a Material Adverse Effect and except with respect to the Credit Facility, on which we express no opinion;
(ivviii) the Indentures have this Agreement has been duly authorized, executed and delivered by the Company; and the Registration Rights Agreement has been duly authorized, executed and constitute delivered by the Company; and the statements in the Preliminary Memorandum and Final Memorandum under the heading “Description of Notes,” insofar as such statements purport to summarize certain provisions of the Registration Rights Agreement, are accurate summaries in all material respects;
(ix) the Indenture has been duly authorized, executed and delivered by the Company and the Guarantors, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a legal, valid and binding instruments instrument enforceable against the Company in accordance with their respective its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Securities have been duly authorized by the Company and the Guarantors and, when executed and authenticated by the Trustee 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, binding and enforceable 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 Securities will be convertible into Common Stock in accordance with the terms of the applicable Indenture);; and
(vx) no consent, approval, authorization, filing with or order of any court or governmental agency or body having jurisdiction over the Securities have been duly authorized and executed Company or any of its Subsidiaries is required to be made by the Company andor any of its Subsidiaries under the federal laws of the United States of America, when authenticated the laws of the State of New York, the laws of the State of Colorado, the Delaware General Corporation Law, and the Delaware Limited Liability Company Act that in accordance our experience normally would be applicable to general business entities for the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except for (i) the filing of one or more registration statements by the Company with the terms U.S. Securities and Exchange Commission pursuant to the Act as required by the Registration Rights Agreement, (ii) the filing by the Company of a Form 8-K to report the completion of the applicable Indenture and delivered against payment therefor pursuant to this transactions contemplated by the Agreement, will constitute legal(iii) such consents, valid approvals, authorizations, orders, filings, registrations or qualifications as may be required under blue sky or securities laws of any jurisdiction in which the Securities are offered or sold in connection with the purchase and binding obligations distribution of the Company entitled to Securities by the benefits Initial Purchasers; and (iv) such other approvals as have been obtained. In addition, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall state that, although such counsel has not independently verified, and is not passing on and does not pass on or assume responsibility for, the accuracy, completeness or fairness of the applicable Indenture (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium statements contained in the Disclosure Package 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);
(vi) the statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar no facts have come to the attention of such counsel that would cause it to believe that (i) the Disclosure Package, as amended or supplemented at the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial or reserve information contained therein, as to which such counsel need express no opinion), and (ii) the Final Memorandum, as of its date or on 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 purport therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements (including the notes thereto) and other financial and reserve information contained therein, as to summarize certain provisions which such counsel need express no opinion). 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(a) include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to furnish the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that none of the execution and delivery of the Indenture, the Registration Rights Agreement or this Agreement, the issuance and sale of the Securities, nor the performance of the obligations hereunder or thereunder by the Company and the Guarantors 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 the Credit Facility.
(c) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 IndenturesIndenture, 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 request for the purpose of enabling them to pass upon such matters.
(d) The Company and each Guarantor shall have furnished to the Representatives a certificate, signed by the Company’s and each Guarantors’ (x) the Chairman of the Board or the President and (y) the principal financial or accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Final Memorandum and any supplements or amendments thereto, and this Agreement and that:
(i) the Common Stockrepresentations and warranties of the Company and the Guarantors in this Agreement are true and correct in all materials respects (except to the extent already qualified by materiality, in which case such representations are true and correct in all 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 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 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).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, confirming that they are a registered public accounting firm and independent accountants within the meaning of the Exchange Act and substantially in the form of Exhibit A hereto.
(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, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(g) 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, confirming that they were a registered public accounting firm and independent accountants within the meaning of the Exchange Act and substantially in the form of Exhibit B hereto.
(h) At the Execution Time and the Closing Date, the Company shall have requested and caused Netherland, ▇▇▇▇▇▇ & Associates, Inc. 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 petroleum engineers and covering certain matters relating to information about the reserves of applicable tax law the Company presented in the Disclosure Package and regulationsFinal Memorandum.
(i) The Securities shall be eligible for clearance and settlement through The Depository Trust Company, provide Euroclear System and Clearstream Banking S.A.
(j) Subsequent to the Execution Time, there shall not have been any decrease in all material respects an accurate and fair summary the rating of such provisions, laws and regulations;any of the Company’s debt se
Appears in 1 contract
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 of the Company contained herein at the Execution Time, the 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:
(a) The Company shall have requested and caused Fenwick & West ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representatives Representative its opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and 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, except for such jurisdictions where the failure to be so qualified and in good standing, have such corporate power or authority, or to so qualify standing would notnot reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect;
(ii) Reserved;
(iii) the Company’s authorized equity capitalization is as set forth in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package outstanding shares of Common Stock have been duly authorized and the Final Memorandumvalidly issued and are fully paid and nonassessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the SecuritiesSecurities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable IndentureSecurities; and the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Securities or for the shares of Common Stock 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, shares of capital stock of or ownership interests in the Company are outstanding;
(iii) the Indenture has been duly authorized, executed and delivered; the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the SecuritiesIndenture and delivered to and paid for by the Initial Purchasers under this Agreement, will be validly executed and delivered; the Registration Rights Agreement has been duly authorized, executed and delivered; and the statements set forth under the heading “Description of Capital Stock” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Common Stock, provide a fair summary of such provisions;
(iv) to the Indentures 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 singly or in the aggregate, have a Material Adverse Effect;
(v) such counsel has no reason to believe that at the Execution Time or 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 contained therein and other than the cover page and sections of the Final Memorandum entitled “Notice to Investors”, “Summary – The Offering”, “Risk Factors – Risks Related to the Debentures”, “Description of Debentures”, “Material United States Federal Incomes Tax Considerations”, “Plan of Distribution” and “Transfer Restrictions”, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issuance and constitute 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, including the issuance of the Common Stock 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 Company or of any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) any agreement which the Company has filed with the Commission as an exhibit to its Annual Report on Form 10-K for the year ended December 31, 2003; 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; and
(viii) 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, required to register as an “investment company” as defined in the Investment Company Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than Oregon or the federal laws of the United States the State of Oregon, to the extent they deem proper and specified in such opinion, upon the opinion of O’Melveny and ▇▇▇▇▇ 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. References to the Final Memorandum in this Section 6(a) include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused O’Melveny & ▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) the Securities conform to the description thereof contained in the Final Memorandum in all material respects;
(ii) assuming the due authorization, execution and delivery under Oregon law, the Indenture constitutes a legal, valid and binding instruments instrument enforceable against the Company in accordance with their respective 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); assuming the due authorization under Oregon law, the Securities, 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, binding and enforceable 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 Securities will be convertible into Common Stock in accordance with their terms; assuming the terms of due authorization, execution and delivery under Oregon law, the applicable Indenture;
(v) Registration Rights Agreement constitutes the Securities have been duly authorized and executed by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid valid, binding and binding obligations enforceable instrument of the Company entitled to the benefits of the applicable 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 except as rights to indemnification and fair dealing, regardless of whether considered in a proceeding in equity or at contribution under the Registration Rights Agreement may be limited by applicable law);
(viiii) the statements set forth in the Final Memorandum on the cover page and under the headings “Description of NotesNotice to Investors”. , “Registration RightsSummary – The Offering”, “Risk Factors – Risks Related to the Debentures”, “Description of Capital StockDebentures”, “Material United States Federal Income Tax Considerations”, “Plan of Distribution” and “Certain U.S. Federal Tax ConsiderationsTransfer Restrictions” insofar as they purport to summarize the provisions of laws and documents referred to therein are accurate in all material respects;
(iv) no consent, approval, authorization, filing with or order of any 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 (v) below) and such other approvals (specified in such opinion) as have been obtained; and
(v) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(f)), no registration under the Act of the Securities or the Common Stock issuable upon conversion thereof, and no qualification of an indenture under the Trust Indenture Act, are required for the sale and delivery of the Securities by the Company 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. In rendering such opinion, insofar such counsel 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 Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such statements purport opinion or opinions, dated the Closing Date and addressed to summarize certain provisions the Representative, with respect to the issuance and sale of the Securities, the IndenturesIndenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the 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.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the 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 signers of such certificate have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that:
(i) the Common Stockrepresentations and warranties of the Company 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 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 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).
(e) At the Execution Time and at the Closing Date, KPMG LLP shall have furnished to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative, independent 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 (including any amendment or supplement thereto at the date of the applicable letter); provided that the letter delivered at the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(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) (A) any change in capital stock (except for stock option exercises and exchangeable shares exchanged), increase in long-term debt or any decreases in consolidated net current assets (except for a decrease resulting from the use of cash and cash equivalents to purchase long-term marketable securities) or consolidated shareholders’ equity as compared with amounts shown on the March 31, 2004, unaudited condensed consolidated balance sheet incorporated by reference in the Final Memorandum or (B) any decreases, as compared with the corresponding period in the preceding year, in consolidated net revenues, operating income or in the total or per-share amounts of net income, in each case, specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or matters any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of applicable tax law the Company and regulationsits subsidiaries taken as a whole, provide 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 Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
(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 Depository Trust Company.
(h) Prior to the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company.
(i) 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 National Market.
(j) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled 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 reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all material respects an accurate and fair summary obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such provisions, laws and regulations;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 couns
Appears in 1 contract
Sources: Purchase Agreement (Pixelworks 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 of the Company contained herein at the Execution Time, Time and on the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 Fenwick V▇▇▇▇▇ & West LLPE▇▇▇▇▇ L.L.P., 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) Assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(g)), no registration under the Act of the Securities is required for the sale and delivery of the Securities by the Company has been duly incorporated to the Initial Purchasers or the offer and is validly existing as a corporation in good standing under sale by the laws Initial Purchasers of the State of DelawareSecurities solely in the manner contemplated herein, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and in the Final MemorandumMemorandum and no qualification of an indenture under the Trust Indenture Act is required; provided, however, that such counsel expresses no opinion as to any subsequent resale of any Security;
(ii) The Company has been duly formed and is validly existing and in good standing as a limited liability company under the Delaware LLC Act, has the full limited liability company power and authority necessary to own or hold its properties and assets and to conduct the businesses in which it is engaged, and is duly registered or qualified to do business as a foreign corporation and is in good standing under the laws of as a foreign limited liability company in each jurisdiction which requires such qualification, except for such jurisdictions where the failure to be listed opposite its name in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) ReservedSchedule II hereto;
(iii) The Operating Partnership owns a 100% limited liability company interest in the Company’s authorized equity capitalization is as set forth in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have such limited liability company interest has been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities authorized and issued in accordance with the terms LLC Agreement and is fully paid (to the extent required under the LLC Agreement) and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the applicable IndentureDelaware LLC Act); and the holders Operating Partnership owns such limited liability company interest free and clear of outstanding shares all Liens (except restrictions on transferability contained in the LLC Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LLC Act) (i) in respect of capital stock which a financing statement under the Uniform Commercial Code of the Company are not entitled to any preemptive rights to subscribe for State of Delaware naming the Securities or for Operating Partnership as debtor is on file with the shares Secretary of Common Stock issuable upon conversion State of the SecuritiesState of Delaware or (ii) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LLC Act or the LLC Agreement;
(iv) the Indentures have The Purchase Agreement has been duly and validly authorized, executed and delivered by the Company;
(v) Each Indenture has been duly and validly authorized, executed and constitute legaldelivered by the Company and (assuming the due authorization, execution and delivery thereof by the Trustee) constitutes a valid and binding instruments agreement of the Company, enforceable against the Company in accordance with their respective terms (subjectits terms, except as to the enforcement of remedies, to applicable thereof may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, insolvency (including, without limitation, concepts all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of materiality, reasonableness, good faith creditors’ rights generally and fair dealing, except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the Securities will be convertible into Common Stock in accordance with the terms an implied covenant of the applicable Indenturegood faith and fair dealing;
(vvi) The Securities have been duly and validly authorized by the Company and, assuming that the Securities have been duly authorized authenticated by the Trustee in the manner described in its certificate delivered to you today (which fact such counsel need not determine by an inspection of the Securities) and executed have been delivered against payment of the purchase price therefor as provided in the Purchase Agreement, have been duly executed, issued and delivered by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company entitled to in accordance with their terms, except as the benefits of the applicable Indenture (subject, as to enforcement of remedies, to applicable thereof may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, insolvency (including, without limitation, concepts all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of materiality, reasonableness, good faith creditors’ rights generally and fair dealing, except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law)) and an implied covenant of good faith and fair dealing, and will be in the form contemplated by, and entitled to the benefits of, the Indenture;
(vivii) None of the statements set forth under offering, issuance and sale by the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions Company of the Securities, the Indenturesexecution, delivery and performance of the Purchase Agreement, the Registration Rights Agreement Indenture and the Common StockSecurities by the Company , or matters the consummation of the transactions contemplated thereby (i) constitutes or will constitute a violation of the certificate of formation, the LLC Agreement or other organizational documents of the Company, (ii) constitutes or will constitute a breach or violation of or a default under (or an event that, with notice or lapse of time or both, would constitute such a breach or violation of or default under), any agreement filed as an exhibit to Boardwalk Pipeline Partners, LP’s Form 10-K for the year ended December 31, 2007 or any subsequent reports filed by Boardwalk Pipeline Partners, LP under the Exchange Act or (iii) violates or will violate any applicable tax law of the United States of America or the State of New York or the Delaware LLC Act, excluding in the case of clauses (ii) and regulations(iii) any such breaches, provide violations and defaults that would not have a Material Adverse Effect;
(viii) No Governmental Approval is required for the execution, delivery and performance of the Purchase Agreement, the Indenture and the Securities by the Company, the consummation of the transactions contemplated thereby and the application of the proceeds from the sale of the Securities as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, except for such Governmental Approvals (i) as have been obtained or made or (ii) would not have a Material Adverse Effect if not obtained or made;
(ix) The statements set forth in each of the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Indenture and the Securities or a summary of certain provisions of documents referred to therein, and under the caption “Certain United States Federal Tax Consequences,” insofar as they purport to summarize the laws referred to therein, are accurate summaries in all material respects, subject to the qualifications and assumptions therein; and the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes;” and
(x) The Company is not, and after giving effect to the application of the net proceeds from the offering as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, the Company will not be, an accurate “investment company” as defined in the Investment Company Act. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and fair summary the Delaware LLC Act. Such counsel need not express any opinion with respect to the title of the Company to any of its respective real or personal property, and need not express any opinion with respect to state or local taxes or tax statutes to which the Company may be subject. In addition, such provisionscounsel shall state that it has participated in conferences with officers and other representatives of the Company, laws representatives of the independent registered public accounting firm of the Company and regulations;representatives of the Initial Purchasers, at which the contents of the Disclosure Package and the Final Memorandum and related matters were discussed, and although such counsel did not independently investigate or verify the information set forth in the Disclosure Package and the Final Memorandum, and such counsel is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Disclosure Package and the Final Memorandum (except to the extent specified in paragraph (x) above), based on the foregoing (relying as to factual matters in respect of the determination of materiality to the extent such counsel deems reasonable and appropriate upon the statements of fact made by officers and other representatives of the Company), no facts have come to such counsel’s attention that have led such counsel to believe that:
(A) the Final Memorandum, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(B) the Disclosure Package, as of the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that in each case such counsel need express no opinion with respect to the financial statements and notes and schedules thereto or other related financial, accounting and statistical data contained in or omitted from the Disclosure Package or the Final Memorandum or any further amendment or supplement thereto.
Appears in 1 contract
Sources: Purchase Agreement (Boardwalk Pipeline Partners, LP)
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, Guarantees shall be subject to the accuracy of the representations and warranties of the Company Endeavour Parties contained herein at the Execution Time, Time and the Closing Date (except to the extent such representations and any settlement warranties expressly relate to a specific earlier date pursuant to Section 3 hereof(in which case such representations and warranties shall be true and correct as of such specified earlier date)), to the accuracy of the statements of the Company Endeavour Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Endeavour Parties of its their obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Fenwick ▇▇▇▇▇▇ & West ▇▇▇▇▇▇ LLP, counsel for the CompanyEndeavour Parties, to furnish to the Representatives Representative its opinion, dated the Closing Date Date, and addressed to the RepresentativesRepresentative, to the effect that:
(i) assuming (i) the accuracy of the representations and warranties of the Endeavour Parties and the Initial Purchasers set forth in this Agreement, (ii) the due performance by the Endeavour Parties and the Initial Purchasers of the covenants and agreements set forth in this Agreement, (iii) the compliance by the Initial Purchasers with the offering and transfer procedures and restrictions described in the Disclosure Package, and (iv) that each of the Initial Purchasers is an “accredited investor” as defined in Rule 501(a)(1) under the Securities Act, (a) the offer, sale and delivery of the Securities and the Guarantees to the Initial Purchasers by the Endeavour Parties and (b) the initial resale of the Securities and the Guarantees by the Initial Purchasers, each in the manner contemplated by this Agreement and the Disclosure Package and the Final Memorandum, do not require registration under the Securities Act; provided, however, that such counsel need not express any opinion as to any subsequent reoffer or resale of any of the Securities; and the Indentures do not require qualification under the Trust Indenture Act;
(ii) (a) each of the Guarantors is validly existing in good standing under the laws of the jurisdiction in which it is chartered or organized, (b) each of the Guarantors has full corporate power and authority to own or lease its properties, as the case may be, and conduct its business as described in the Disclosure Package and the Final Memorandum, and (c) each of the Endeavour Parties is in good standing under the laws of the jurisdictions set forth on Schedule V;
(iii) to the knowledge of such counsel, (A) there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body to which the Company or any of its Subsidiaries is a party or to which any of their respective properties are subject, of a character required to be disclosed in the Incorporated Documents which is not disclosed in the Incorporated Documents as required, and (B) there is no contract or other document of a character required to be described in the Incorporated Documents or to be filed as an exhibit thereto, which is not described or filed as required; and the section of the Disclosure Package and the Final Memorandum entitled “Certain United States Federal Income Tax Consequences,” insofar as it purports to constitute a summary of United States federal tax law and regulations or legal conclusions with respect thereto, constitutes an accurate summary of the matters described therein in all material respects, subject to the assumptions and qualifications set forth therein; and the statements contained or incorporated by reference in the Disclosure Package and the Final Memorandum under the captions, “Business—Environmental Matters and Regulation” and “Business—Regulations,” insofar as they refer to statements of law or legal conclusions, accurately describe, in all material respects, the statutes and regulations addressed thereby;
(iv) the statements in the Disclosure Package and the Final Memorandum under the captions “Description of the Notes” and “Description of Other Indebtedness,” insofar as they purport to constitute summaries of the documents, including the Securities and the Guarantees, described therein, are accurate in all material respects;
(v) none of the Endeavour Parties is and, after giving effect to the offering and sale of the Securities and the Guarantees and the application of the proceeds therefrom as described in the Disclosure Package and the Final Memorandum, will be, required to register as an “investment company” as defined in the Investment Company Act;
(vi) no consent, approval, authorization, filing with or order of any United States court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indentures, in the Escrow Agreement or in the Registration Rights Agreements, except (x) such as may be required under the Securities Act, the Trust Indenture Act or the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and the Guarantees by the Initial Purchasers in the manner contemplated in this Agreement, the Disclosure Package and the Final Memorandum; (y) the filing of appropriate UCC financing statements in the office of the Secretary of State of the State of Delaware or (z) such other approvals (specified in such opinion) as have been obtained;
(vii) none of the execution and delivery of the Indentures, the Registration Rights Agreements, the Escrow Agreement or this Agreement, the issuance and sale of the Securities and the Guarantees, nor the consummation of any other of the transactions contemplated herein or therein, nor the fulfillment of the terms hereof or thereof will conflict with, or result in a breach, or violation of, any of the terms or provisions of, or constitute a default under (A), any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument filed or incorporated by reference as an exhibit to the Incorporated Documents (such documents collectively, the “Applicable Contracts”), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries (except for liens contemplated by the terms of the Escrow Agreement or the Security Documents) pursuant to any Applicable Contract, (B) any federal or Texas state law, regulation or rule, the Delaware General Corporation Law, or, to our knowledge and without having investigated governmental records or court dockets, any decree, judgment or order applicable to the Company or its Subsidiaries or (C) the organizational documents of the Guarantors, except, in the case of clauses (A) and (B) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect or with respect to which consents have been obtained. With respect to clause (B) above, such counsel need express no opinion as to the application of any state securities or blue sky laws or federal or state antifraud laws, rules or regulations;
(viii) this Agreement has been duly authorized, executed and delivered by each of the Guarantors;
(ix) the Escrow Agreement has been duly authorized, executed and delivered by Endeavour Operating Corporation, and assuming due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding instrument enforceable against Endeavour Operating Corporation in accordance with its terms (subject to the Enforceability Exceptions);
(x) the Registration Rights Agreements have been duly authorized, executed and delivered by each of the Guarantors, and assuming due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding instrument enforceable against each of the Endeavour Parties in accordance with its terms (subject to the Enforceability Exceptions);
(xi) the Indentures have been duly authorized, executed and delivered by each of the Guarantors, and assuming due authorization, execution and delivery thereof by the Company and the applicable Trustee, constitute legal, valid and binding instruments enforceable against each of the Endeavour Parties in accordance with their terms (subject to the Enforceability Exceptions);
(xii) the Securities, when executed and authenticated in accordance with the provisions of the applicable Indentures and delivered to and paid for by the Initial Purchasers under this Agreement, will constitute legal, valid and binding obligations, enforceable against the Company in accordance with their terms (subject to the Enforceability Exceptions), and will be entitled to the benefits of the applicable Indenture;
(xiii) the Guarantees have been duly authorized by each of the Guarantors and, when each global certificate representing the Securities has been duly executed, authenticated, issued and delivered as provided in the applicable Indenture and paid for as provided in this Agreement, the Guarantees will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms (subject to the Enforceability Exceptions), and will be entitled to the benefits of the applicable Indenture;
(xiv) the Exchange Securities, when duly executed, authenticated, issued and delivered as contemplated by the applicable Registration Rights Agreement and the applicable Indenture, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms (subject to the Enforceability Exceptions), and will be entitled to the benefits of the applicable Indenture; and
(xv) the Exchange Guarantees have been duly authorized by each of the Guarantors and, when each global certificate representing the Exchange Securities has been duly executed, authenticated, issued and delivered as provided in the applicable Registration Rights Agreement and the applicable Indenture, the Exchange Guarantees will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms (subject to the Enforceability Exceptions), and will be entitled to the benefits of the applicable Indenture. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, the independent public accountants of the Company, the independent reserve engineers, the Representative and counsel for the Initial Purchasers, at which the contents of the Disclosure Package and the Final Memorandum and related matters were discussed, and although such counsel has not independently verified, is not passing upon, and is not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in, the Disclosure Package and the Final Memorandum (except as specifically described in the opinions in paragraph (iii) and (iv) of the foregoing opinion), based on the foregoing no facts have come to the attention of such counsel that lead such counsel to believe that:
1. the Disclosure Package, as of the Execution Time, included 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
2. the Final Memorandum, as of its date and on the Closing Date, included or includes an untrue statement of a material fact or omitted 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; it being understood that such counsel expresses no statement or belief with respect to (i) the financial statements and related schedules, including the notes thereto and independent registered public accountants’ reports thereon, included or incorporated by reference in the Disclosure Package or the Final Memorandum, (ii) any other financial data or accounting data, information pertaining to oil and natural gas reserves and future net revenues data or statistical information derived from financial information included or incorporated by reference in or omitted from the Disclosure Package or the Final Memorandum, or (iii) any representations and warranties and other statements of fact included in the exhibits to the Incorporated Documents. Such counsel need not express any opinion as to the enforceability of any provisions relating to: (a) any failure to comply with requirements concerning notices, relating to delay or omission to enforce rights or remedies or purporting to waive or affect rights, claims, defenses or other benefits to the extent that any of the same cannot be waived or so affected under applicable law; (b) indemnities or exculpation from liability to the extent prohibited by federal or state laws and the public policies underlying those laws or that might require indemnification for, or exculpation from liability on account of, gross negligence, willful misconduct, unlawful acts, fraud or illegality of an indemnified or exculpated party; (c) requirements that all amendments, waivers and terminations be in writing or the disregard of any course of dealing between the parties; (d) default interest, liquidated damages and other penalty provisions; (e) the avoidance of the effect of any fraudulent transfer, fraudulent conveyance laws or similar provisions of applicable law by limiting the amount of the Guarantor’s obligation under the Indentures or the Guarantees; or (f) applicable bankruptcy, insolvency, moratorium, fraudulent transfer or similar laws affecting the enforcement of creditors’ rights generally and equitable principles and implied covenants of good faith and fair dealing relating to enforceability (clauses (a) through (f) collectively, the “Enforceability Exceptions”). 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 New York or Texas, the Delaware General Corporation Law and 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 Endeavour Parties and public officials. References to the Final Memorandum in this paragraph (b) shall also include any supplements thereto at the Closing Date. Such counsel may limit its opinions to the laws of the States of New York and Texas, the Delaware General Corporation Law and federal laws of the United States, to the extent specifically referred to herein.
(b) The Representative shall have received the opinion of ▇▇▇▇▇▇▇▇ and Wedge, opining as to the law of Nevada, addressed to the Representative and dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareNevada, with full the corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and 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, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) Reserved;
(iii) each of this Agreement, the Company’s authorized equity capitalization is as set forth in Registration Rights Agreements, the Final Memorandum under the heading “Capitalization” Escrow Agreement and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company Indentures has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the Securities;
(iv) the Indentures have been duly authorized, executed and delivered by the Company, and constitute legal, valid and binding instruments enforceable against the Company in accordance with their respective terms (subject, as to 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 Securities will be convertible into Common Stock in accordance with the terms of the applicable Indenture;
(viii) the Securities and the Exchange Securities have been duly authorized and executed by the Company andCompany;
(iv) no consent, when authenticated approval, authorization, filing with or order of any Nevada court or Nevada governmental agency or body is required in accordance connection with the terms transactions contemplated herein, in the Indentures, in the Escrow Agreement or in the Registration Rights Agreements, except such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the applicable Indenture Securities and delivered against payment therefor pursuant to the Guarantees by the Initial Purchasers in the manner contemplated in this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, as to 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);
(vi) the statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indentures, the Registration Rights Agreement and the Common Stock, or matters of applicable tax law and regulations, provide in all material respects an accurate and fair summary of such provisions, laws and regulations;D
Appears in 1 contract
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 of the Company contained herein at the Execution Time, Time and on the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 Fenwick ▇▇▇▇▇▇ & West LLP▇▇▇▇▇▇ L.L.P., 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) Assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(g)), no registration under the Act of the Securities is required for the sale and delivery of the Securities by the Company has been duly incorporated to the Initial Purchasers or the offer and is validly existing as a corporation in good standing under sale by the laws Initial Purchasers of the State of DelawareSecurities solely in the manner contemplated herein, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and in the Final MemorandumMemorandum and no qualification of an indenture under the Trust Indenture Act is required; provided, however, that such counsel expresses no opinion as to any subsequent resale of any Security;
(ii) The Company is validly existing and in good standing as a limited liability company under the Delaware LLC Act, has the full limited liability company power and authority necessary to own or hold its properties and assets and to conduct the businesses in which it is engaged, and is duly registered or qualified to do business as a foreign corporation and is in good standing under the laws of as a foreign limited liability company in each jurisdiction which requires such qualification, except for such jurisdictions where the failure to be listed opposite its name in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) ReservedSchedule II hereto;
(iii) The Operating Partnership owns a 100% limited liability company interest in the Company’s authorized equity capitalization is as set forth in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have such limited liability company interest has been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities authorized and issued in accordance with the terms LLC Agreement and is fully paid (to the extent required under the LLC Agreement) and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the applicable IndentureDelaware LLC Act); and the holders Operating Partnership owns such limited liability company interest free and clear of outstanding shares all Liens (except restrictions on transferability contained in the LLC Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LLC Act) (i) in respect of capital stock which a financing statement under the Uniform Commercial Code of the Company are not entitled to any preemptive rights to subscribe for State of Delaware naming the Securities or for Operating Partnership as debtor is on file with the shares Secretary of Common Stock issuable upon conversion State of the SecuritiesState of Delaware or (ii) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LLC Act or the LLC Agreement;
(iv) The Purchase Agreement has been duly and validly authorized, executed and delivered by the Indentures have Company;
(v) The Indenture has been duly authorized, executed and delivered by the CompanyCompany and (assuming the due authorization, execution and constitute legal, delivery thereof by the Trustee) constitutes a valid and binding instruments agreement of the Company, enforceable against the Company in accordance with their respective terms its terms, subject to (subject, as to enforcement of remedies, to i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium and similar laws relating to or other laws affecting creditors’ rights generally from time to time in effect and to general principles an implied covenant of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and the Securities will be convertible into Common Stock in accordance with the terms of the applicable Indenture(iii) public policy considerations relating to rights to indemnification or contribution;
(vvi) The Securities have been duly authorized by the Company and, assuming that the Securities have been duly authorized authenticated by the Trustee in the manner described in its certificate delivered to you today (which fact such counsel need not determine by an inspection of the Securities) and executed have been delivered against payment of the purchase price therefor as provided in the Purchase Agreement, the Securities have been duly executed, issued and delivered by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled in accordance with their terms, subject to the benefits of the applicable Indenture (subject, as to enforcement of remedies, to i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium and similar laws relating to or other laws affecting creditors’ rights generally from time to time in effect and to general principles an implied covenant of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)) and (iii) public policy considerations relating to rights to indemnification or contribution, and will be in the form contemplated by, and entitled to the benefits of, the Indenture;
(vivii) None of the statements set forth under offering, issuance and sale by the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions Company of the Securities, the Indenturesexecution, delivery and performance of the Purchase Agreement, the Registration Rights Agreement Indenture and the Common StockSecurities by the Company , or matters the consummation of the transactions contemplated thereby (i) constitutes or will constitute a violation of the certificate of formation, the LLC Agreement or other organizational documents of the Company, (ii) constitutes or will constitute a breach or violation of or a default under (or an event that, with notice or lapse of time or both, would constitute such a breach or violation of or default under), any agreement filed as an exhibit to Boardwalk Pipeline Partners, LP’s Form 10-K for the year ended December 31, 2009 or any subsequent reports filed by Boardwalk Pipeline Partners, LP under the Exchange Act or (iii) violates or will violate any applicable tax law of the United States of America or the State of New York or the Delaware LLC Act, excluding in the case of clauses (ii) and regulations(iii) any such breaches, provide violations and defaults that would not have a Material Adverse Effect;
(viii) No Governmental Approval is required for the execution, delivery and performance of the Purchase Agreement, the Indenture and the Securities by the Company, the consummation of the transactions contemplated thereby and the application of the proceeds from the sale of the Securities as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, except for such Governmental Approvals (i) as have been obtained or made or (ii) would not have a Material Adverse Effect if not obtained or made;
(ix) The statements set forth in each of the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Indenture and the Securities or a summary of certain provisions of documents referred to therein, and under the caption “Certain United States Federal Tax Consequences,” insofar as they purport to summarize the laws referred to therein, are accurate summaries in all material respects, subject to the qualifications and assumptions therein; and the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes;” and
(x) The Company is not, and after giving effect to the application of the net proceeds from the offering as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, the Company will not be, an accurate “investment company” as defined in the Investment Company Act. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and fair summary the Delaware LLC Act. Such counsel need not express any opinion with respect to the title of the Company to any of its respective real or personal property, and need not express any opinion with respect to state or local taxes or tax statutes to which the Company may be subject. In addition, such provisionscounsel shall state that it has participated in conferences with officers and other representatives of the Company, laws representatives of the independent public accountants of the Company and regulations;representatives of the Initial Purchasers, at which the contents of the Disclosure Package and the Final Memorandum and related matters were discussed, and although such counsel did not independently investigate or verify the information set forth in the Disclosure Package and the Final Memorandum, and such counsel is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Disclosure Package and the Final Memorandum (except to the extent specified in paragraph (x) above), based on the foregoing (relying as to factual matters in respect of the determination of materiality to the extent such counsel deems reasonable and appropriate upon the statements of fact made by officers and other representatives of the Company), no facts have come to such counsel’s attention that have led such counsel to believe that:
(A) the Final Memorandum, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(B) the Disclosure Package, as of the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that in each case such counsel need express no opinion with respect to the financial statements and notes and schedules thereto or other related financial and accounting data contained in or omitted from the Disclosure Package or the Final Memorandum or any further amendment or supplement thereto.
Appears in 1 contract
Sources: Purchase Agreement (Boardwalk Pipeline Partners, LP)
Conditions to the Obligations of the Initial Purchasers. The obligations obligation of the several 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, date of this Agreement and as of the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 No Initial Purchaser shall have requested advised the Company that the Time of Sale Disclosure Package or the Final Offering Memorandum, or any amendment thereof or supplement thereto, or any Supplemental Offering Materials, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and caused Fenwick & West is required to be stated therein or necessary to make the statements therein not misleading.
(b) On the Closing Date, there shall have been furnished to the Initial Purchasers, the opinion of P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the RepresentativesInitial Purchasers, in the form of Schedule V.
(c) On the Closing Date, there shall have been furnished to the Initial Purchasers, the opinion of M▇. ▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President and General Counsel of the Company, dated the Closing Date and addressed to the Initial Purchasers, to the effect that:
(i) Each of the Company subsidiaries has been duly incorporated and is validly existing in its state of incorporation as a corporation set forth in good standing under the laws an exhibit thereto;
(ii) Each of the State of Delaware, with full subsidiaries has the corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Time of Sale Disclosure Package and the Final Offering 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, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) Reserved;
(iii) All of the Company’s outstanding shares of capital stock of each subsidiary have been duly and validly authorized equity capitalization is and issued and are fully paid and nonassessable, and, except as set forth in the Final Memorandum under the heading “Capitalization” and the capital stock Time of the Company conforms to the description thereof contained in the Sale Disclosure Package and the Final Offering Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of all outstanding shares of capital stock of the Company subsidiaries are not entitled to owned free and clear of any preemptive rights to subscribe for the Securities perfected security interest or for the shares of Common Stock issuable upon conversion of the Securities;any other security interests, claims, liens or encumbrances.
(iv) the Indentures have been duly authorized, executed and delivered by the Company, and constitute legal, valid and binding instruments enforceable against the Company in accordance with their respective terms (subject, as to 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 Securities will be convertible into Common Stock in accordance with the terms of the applicable Indenture;
(v) the Securities have been duly authorized and executed by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, as to 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);
(vi) the The statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax ConsiderationsPart I—Item 3 Legal Proceedings” in the Company’s Annual Report Form 10-K for the year ended June 30, 2006, under “Part I—Item 1 Legal Proceedings” in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2006, under “Part I—Item 1 Legal Proceedings” in the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2006, and under “Part I—Item 1 Legal Proceedings” in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2007, in each case incorporated by reference in the Time of Sale Disclosure Package and the Final Offering Memorandum, insofar as such statements purport summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; and
(v) Each of the documents incorporated by reference in the Time of Sale Disclosure Package and in the Final Offering Memorandum, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable; and such counsel has no reason to summarize certain provisions believe that any of such documents, when such document became effective or were so filed, as the case may be, contained an untrue statement of a material fact or omitted to state 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 (x) as to matters involving the application of laws of any jurisdiction other than the States of Delaware and New York or the Federal laws of the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the Initial Purchasers and (y) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Offering Memorandum in this paragraph (c) shall also include any supplements thereto at the Closing Date.
(d) On the Closing Date, the Initial Purchasers shall have received from Shearman & Sterling LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchasers, with respect to the issuance and sale of the Securities, the IndenturesTime of Sale Disclosure Package, the Registration Rights Final Offering Memorandum (together with any supplement thereto) and other related matters as the 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.
(e) Since the date of the most recent financial statements included in the Time of Sale Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse effect on 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 by the Time of Sale Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto); and the Company shall have furnished to the Representatives a certificate of the Company, signed by the 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 signers of such certificate have carefully examined the Time of Sale Disclosure Package, the Final Offering Memorandum, any supplements to the Final Offering Memorandum and this Agreement and that:
(i) The representations and warranties of the Company 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 Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Since the date of the most recent financial statements included in the Time of Sale Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse effect on 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 Time of Sale Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto).
(f) The Representatives shall have received, at the time this Agreement is executed and at the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives from Ernst & Young LLP, independent public accountant, containing statements and information of the type customarily included in accountants’ comfort letters to underwriters with respect to the financial statements and certain financial information contained in the Time of Sale Disclosure Package and the Final Offering Memorandum. The Representatives shall also have received, at the time this agreement is executed, letters dated the date hereof, in form and substance satisfactory to the Representatives from each of KPMG LLP, BDO Dunwoody LLP and Mr. R▇▇▇▇▇ ▇▇▇▇▇▇, independent public accountants, containing statements and information of the type customarily included in accountants’ comfort letters to underwriters with respect to the financial statements and certain financial information contained in the Time of Sale Disclosure Package and the Final Offering Memorandum.
(g) Subsequent to the date of this Agreement, 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 Securities 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.
(h) On or after the Time of Sale there shall not have occurred any of the following: (i) a suspension or limitation in trading of the Company’s Common StockStock by the Commission or NASDAQ; (ii) a general suspension or general limitation in trading or setting of minimum prices occurs on the New York Stock Exchange or NASDAQ; (iii) a banking moratorium declared by either the Federal or New York State authorities; or (iii) an outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or matters other calamity or crisis the effect of applicable tax law which on the financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Time of Sale Disclosure Package (exclusive of any supplement thereto).
(i) On or prior to the Closing Date, the Representatives and regulationscounsel for the Initial Purchasers shall have been furnished such further information, provide in all material respects an accurate certificates and fair summary of such provisions, laws and regulations;documents as the Representatives or counsel for the Initial Purchasers may reasonably request.
Appears in 1 contract
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 of the Company Partnership Parties contained herein at the Execution Time, Time and on the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Partnership Parties of its their obligations hereunder and to the following additional conditions:
(a) The Company Partnership shall have requested and caused Fenwick ▇▇▇▇▇▇ & West LLP▇▇▇▇▇▇ L.L.P., counsel for the CompanyPartnership, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Assuming the Company has been duly incorporated accuracy of the representations and is validly existing as a corporation warranties and compliance with the agreements contained herein (without regard to the representation found in good standing Section 1(g)), no registration under the laws Act of the State Securities is required for the sale and delivery of Delawarethe Securities by the Partnership to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities solely in the manner contemplated herein, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and in the Final MemorandumMemorandum and no qualification of an indenture under the Trust Indenture Act is required; provided, however, that such counsel expresses no opinion as to any subsequent resale of any Security;
(ii) The Partnership has been duly formed and is validly existing and in good standing as a limited partnership under the Delaware LP Act, has the full partnership power and authority necessary to own or hold its properties and assets and to conduct the businesses in which it is engaged, and is duly registered or qualified to do business as a foreign corporation and is in good standing under the laws of as a foreign limited partnership in each jurisdiction which requires such qualification, except for such jurisdictions where the failure to be listed opposite its name in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) ReservedSchedule II hereto;
(iii) the Company’s authorized equity capitalization The General Partner has been duly formed and is validly existing and in good standing as set forth in the Final Memorandum a limited liability company under the heading “Capitalization” Delaware LLC Act, has the full limited liability company power and authority necessary to own or hold its properties and assets and to conduct the capital stock of the Company conforms businesses in which it is engaged, and is duly registered or qualified to the description thereof contained do business and is in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained good standing as a foreign limited liability company in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities each jurisdiction listed opposite its name in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the SecuritiesSchedule II hereto;
(iv) The Operating Partnership owns a 100% limited liability company interest in the Indentures have General Partner; such limited liability company interest has been duly authorizedand validly authorized and issued in accordance with the GP LLC Agreement and is fully paid (to the extent required under the GP LLC Agreement) and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such limited liability company interest free and clear of all Liens (except restrictions on transferability contained in the GP LLC Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LLC Act) (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file with the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without independent investigation;
(v) The General Partner is the sole general partner of the Partnership, with a 1.0% general partner interest in the Partnership; such general partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens (except restrictions on transferability contained in the Partnership Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LP Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file with the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation. The Operating Partnership is the sole limited partner of the Partnership, with a 99.0% limited partner interest in the Partnership; such limited partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement and is fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and the Operating Partnership owns such limited partner interest free and clear of all Liens (except restrictions on transferability contained in the Partnership Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LP Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file with the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation;
(vi) The Purchase Agreement has been duly authorized and validly executed and delivered by each of the CompanyPartnership Parties;
(vii) The Registration Rights Agreement has been duly authorized and validly executed and delivered by each of the Partnership Parties and (assuming the due authorization, execution and constitute legal, delivery thereof by the Initial Purchasers) constitutes a valid and binding instruments agreement of each of the Partnership Parties, enforceable against the Company each of them in accordance with their respective terms its terms, subject to (subject, as to enforcement of remedies, to i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium and similar laws relating to 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, equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (ii) public policy considerations relating to rights to indemnification or contribution and an implied covenant of good faith and fair dealing;
(viii) The Indenture has been duly authorized, executed and delivered by the Securities will be convertible into Common Stock Partnership and (assuming the due authorization, execution and delivery thereof by the Trustee) constitutes a valid and binding agreement of the Partnership, enforceable against the Partnership in accordance with the terms of the applicable Indenture;
its terms, subject to (vi) the Securities have been duly authorized and executed by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium and similar laws relating to or other laws affecting creditors’ rights generally from time to time in effect and to general principles an implied covenant of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)) and (iii) public policy considerations relating to rights to indemnification or contribution;
(viix) The Securities have been duly authorized by the statements set forth under Partnership and, assuming that the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” Securities have been duly authenticated by the Trustee in the Final Memorandum, insofar as manner described in its certificate delivered to you today (which fact such statements purport to summarize certain provisions counsel need not determine by an inspection of the Securities) and have been delivered against payment of the purchase price therefor as provided in the Purchase Agreement, the IndenturesSecurities have been duly executed, issued and delivered by the Partnership and constitute valid and binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and an implied covenant of good faith and fair dealing, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) public policy considerations relating to rights to indemnification or contribution, and will be in the form contemplated by, and entitled to the benefits of, the Indenture;
(x) The Exchange Securities have been duly authorized by the Partnership and, when the Exchange Securities have been validly issued and duly authenticated in accordance with the terms of the Indenture, the Registration Rights Agreement and the Common StockExchange Offer, the Exchange Securities will have been duly executed, issued and delivered by the Partnership and constitute valid and binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and an implied covenant of good faith and fair dealing, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) public policy considerations relating to rights to indemnification or contribution, and will be in the form contemplated by, and entitled to the benefits of, the Indenture;
(xi) None of the offering, issuance or sale by the Partnership of the Securities, the execution, delivery or performance of this Agreement, the Registration Rights Agreement, the Indenture, the Securities or the Exchange Securities by the Partnership Parties that are parties thereto, or matters the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture (i) constitutes or will constitute a violation of the certificate or agreement of limited partnership, certificate of formation, limited liability company agreement or other organizational documents of either of the Partnership Parties, (ii) constitutes or will constitute a breach or violation of or a default under (or an event that, with notice or lapse of time or both, would constitute such a breach or violation of or default under), any agreement filed as an exhibit to Boardwalk Pipeline Partners, LP’s Form 10-K for the year ended December 31, 2011 or any reports filed by Boardwalk Pipeline Partners, LP under the Exchange Act subsequent to December 31, 2011, or (iii) violates or will violate any applicable tax law of the United States of America or the State of New York, the Delaware LP Act or the Delaware LLC Act, excluding in the case of clauses (ii) and regulations(iii) any such breaches, provide violations and defaults that would not have a Material Adverse Effect;
(xii) Subject to the assumptions contained in (i), no Governmental Approval is required for the execution, delivery or performance of this Agreement, the Registration Rights Agreement, the Indenture, the Securities or the Exchange Securities by the Partnership Parties that are parties thereto, the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture or the application of the proceeds from the sale of the Securities as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, except for such Governmental Approvals (i) as have been obtained or made, (ii) as may be required under the Act or the Trust Indenture Act pursuant to the Registration Rights Agreement or (iii) would not have a Material Adverse Effect if not obtained or made;
(xiii) The statements set forth in each of the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Indenture and the Securities or a summary of certain provisions of documents referred to therein, and under the caption “Certain United States Federal Tax Consequences,” insofar as they purport to summarize the laws referred to therein, are accurate summaries in all material respects, subject to the qualifications and assumptions therein; and the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes;” and
(xiv) The Partnership is not, and after giving effect to the application of the net proceeds from the offering as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, the Partnership will not be, an accurate “investment company” as defined in the Investment Company Act. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York, the Delaware LP Act and fair summary the Delaware LLC Act. Such counsel need not express any opinion with respect to the title of any of the Partnership Parties to any of their respective real or personal property, and need not express any opinion with respect to state or local taxes or tax statutes to which any of the Partnership Parties may be subject. In addition, such provisionscounsel shall state that it has participated in conferences with officers and other representatives of the Partnership Parties, laws representatives of the independent public accountants of the Partnership and regulations;representatives of the Initial Purchasers, at which the contents of the Disclosure Package and the Final Memorandum and related matters were discussed, and although such counsel did not independently investigate or verify the information set forth in the Disclosure Package and the Final Memorandum, and such counsel is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Disclosure Package and the Final Memorandum (except to the extent specified in paragraph (xi) above), based on the foregoing (relying as to factual matters in respect of the determination of materiality to the extent such counsel deems reasonable and appropriate upon the statements of fact made by officers and other representatives of the Partnership Parties), no facts have come to such counsel’s attention that have led such counsel to believe that:
(A) the Final Memorandum, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(B) the Disclosure Package, as of the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that in each case such counsel need express no opinion with respect to the financial statements and notes and schedules thereto or other related financial and accounting data contained in or omitted from the Disclosure Package or the Final Memorandum or any further amendment or supplement thereto.
Appears in 1 contract
Sources: Purchase Agreement (Boardwalk Pipeline Partners, LP)
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 of the Company Partnership Parties contained herein at the Execution Time, Time and on the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Partnership Parties of its their obligations hereunder and to the following additional conditions:
(a) The Company Partnership shall have requested and caused Fenwick Vinson & West LLP▇▇▇ins ▇.▇.▇., counsel for the CompanyPartnership, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Assuming the Company has been duly incorporated accuracy of the representations and is validly existing as a corporation warranties and compliance with the agreements contained herein (without regard to the representation found in good standing Section 1(g)), no registration under the laws Act of the State Securities is required for the sale and delivery of Delawarethe Securities by the Partnership to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities solely in the manner contemplated herein, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and in the Final MemorandumMemorandum and no qualification of an indenture under the Trust Indenture Act is required; provided, however, that such counsel expresses no opinion as to any subsequent resale of any Security;
(ii) The Partnership has been duly formed and is validly existing and in good standing as a limited partnership under the Delaware LP Act, has the full partnership power and authority necessary to own or hold its properties and assets and to conduct the businesses in which it is engaged, and is duly registered or qualified to do business as a foreign corporation and is in good standing under the laws of as a foreign limited partnership in each jurisdiction which requires such qualification, except for such jurisdictions where the failure to be listed opposite its name in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) ReservedSchedule II hereto;
(iii) the Company’s authorized equity capitalization The General Partner has been duly formed and is validly existing and in good standing as set forth in the Final Memorandum a limited liability company under the heading “Capitalization” Delaware LLC Act, has the full limited liability company power and authority necessary to own or hold its properties and assets and to conduct the capital stock of the Company conforms businesses in which it is engaged, and is duly registered or qualified to the description thereof contained do business and is in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained good standing as a foreign limited liability company in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities each jurisdiction listed opposite its name in accordance with the terms of the applicable Indenture; and the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the SecuritiesSchedule II hereto;
(iv) The Operating Partnership owns a 100% limited liability company interest in the Indentures have General Partner; such limited liability company interest has been duly and validly authorized and issued in accordance with the GP LLC Agreement and is fully paid (to the extent required under the GP LLC Agreement) and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such limited liability company interest free and clear of all Liens (except restrictions on transferability contained in the GP LLC Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LLC Act) (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file with the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LLC Act or the GP LLC Agreement;
(v) The General Partner is the sole general partner of the Partnership, with a 1.0% general partner interest in the Partnership; such general partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens (except restrictions on transferability contained in the Partnership Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LP Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file with the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LP Act or the Partnership Agreement. The Operating Partnership is the sole limited partner of the Partnership, with a 99.0% limited partner interest in the Partnership; such limited partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement and is fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and the Operating Partnership owns such limited partner interest free and clear of all Liens (except restrictions on transferability contained in the Partnership Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LP Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file with the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LP Act or the Partnership Agreement;
(vi) The Purchase Agreement has been duly and validly authorized, executed and delivered by each of the Partnership Parties;
(vii) Each Indenture has been duly and validly authorized, executed and delivered by the CompanyPartnership and (assuming the due authorization, execution and constitute legal, delivery thereof by the Trustee) constitutes a valid and binding instruments agreement of the Partnership, enforceable against the Company Partnership in accordance with their respective terms (subjectits terms, except as to the enforcement of remedies, to applicable thereof may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, insolvency (including, without limitation, concepts all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of materiality, reasonableness, good faith creditors’ rights generally and fair dealing, except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the Securities will be convertible into Common Stock in accordance with the terms an implied covenant of the applicable Indenturegood faith and fair dealing;
(vviii) The Securities have been duly and validly authorized by the Partnership and, assuming that the Securities have been duly authorized and executed authenticated by the Company and, when authenticated Trustee in accordance with the terms manner described in its certificate delivered to you today (which fact such counsel need not determine by an inspection of the applicable Indenture Securities) and have been delivered against payment of the purchase price therefor pursuant to this as provided in the Purchase Agreement, will have been duly executed, issued and delivered by the Partnership and constitute legal, valid and binding obligations of the Company entitled to Partnership, enforceable against the benefits of Partnership in accordance with their terms, except as the applicable Indenture (subject, as to enforcement of remedies, to applicable thereof may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, insolvency (including, without limitation, concepts all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of materiality, reasonableness, good faith creditors’ rights generally and fair dealing, except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law)) and an implied covenant of good faith and fair dealing, and will be in the form contemplated by, and entitled to the benefits of, the Indentures;
(viix) None of the statements set forth under offering, issuance and sale by the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar as such statements purport to summarize certain provisions Partnership of the Securities, the Indenturesexecution, delivery and performance of the Purchase Agreement, the Registration Rights Agreement Indentures and the Common StockSecurities by the Partnership Parties that are parties thereto, or matters the consummation of the transactions contemplated thereby (i) constitutes or will constitute a violation of the certificate or agreement of limited partnership, certificate of formation, limited liability company agreement or other organizational documents of either of the Partnership Parties, (ii) constitutes or will constitute a breach or violation of or a default under (or an event that, with notice or lapse of time or both, would constitute such a breach or violation of or default under), any agreement filed as an exhibit to Boardwalk Pipeline Partners, LP’s Form 10-K for the year ended December 31, 2006 or any subsequent reports filed by Boardwalk Pipeline Partners, LP under the Exchange Act or (iii) violates or will violate any applicable tax law of the United States of America or the State of New York, the Delaware LP Act or the Delaware LLC Act, excluding in the case of clauses (ii) and regulations(iii) any such breaches, provide violations and defaults that would not have a Material Adverse Effect;
(x) No Governmental Approval is required for the execution, delivery and performance of the Purchase Agreement, the Indentures and the Securities by the Partnership Parties that are parties thereto, the consummation of the transactions contemplated thereby and the application of the proceeds from the sale of the Securities as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, except for such Governmental Approvals (i) as have been obtained or made or (ii) would not have a Material Adverse Effect if not obtained or made;
(xi) The statements set forth in each of the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Indentures and the Securities or a summary of certain provisions of documents referred to therein, and under the caption “Certain United States Federal Tax Consequences,” insofar as they purport to summarize the laws referred to therein, are accurate summaries in all material respects, subject to the qualifications and assumptions therein; and the Securities and the Indentures conform in all material respects to the descriptions thereof contained in the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes;” and
(xii) The Partnership is not, and after giving effect to the application of the net proceeds from the offering as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, the Partnership will not be, an accurate “investment company” as defined in the Investment Company Act. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York, the Delaware LP Act and fair summary the Delaware LLC Act. Such counsel need not express any opinion with respect to the title of any of the Partnership Parties to any of their respective real or personal property, and need not express any opinion with respect to state or local taxes or tax statutes to which any of the Partnership Parties may be subject. In addition, such provisionscounsel shall state that it has participated in conferences with officers and other representatives of the Partnership Parties, laws representatives of the independent registered public accounting firm of the Partnership and regulations;representatives of the Initial Purchasers, at which the contents of the Disclosure Package and the Final Memorandum and related matters were discussed, and although such counsel did not independently investigate or verify the information set forth in the Disclosure Package and the Final Memorandum, and such counsel is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Disclosure Package and the Final Memorandum (except to the extent specified in paragraph (xii) above), based on the foregoing (relying as to factual matters in respect of the determination of materiality to the extent such counsel deems reasonable and appropriate upon the statements of fact made by officers and other representatives of the Partnership Parties), no facts have come to such counsel’s attention that have led such counsel to believe that:
(A) the Final Memorandum, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(B) the Disclosure Package, as of the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that in each case such counsel need express no opinion with respect to the financial statements and notes and schedules thereto or other related financial, accounting and statistical data contained in or omitted from the Disclosure Package or the Final Memorandum or any further amendment or supplement thereto.
Appears in 1 contract
Sources: Purchase Agreement (Boardwalk Pipeline Partners, LP)
Conditions to the Obligations of the Initial Purchasers. The obligations obligation 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 date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time, ") and the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 Initial Purchasers shall have requested and caused Fenwick & West LLP, counsel for the Company, to furnish to the Representatives its received an opinion, dated the Closing Date Date, of ▇▇▇▇▇▇ and addressed ▇▇▇▇▇▇, special Cayman Islands counsel to the RepresentativesCompany, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation company in good standing under the laws of the State of DelawareCayman Islands, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package Final Memorandum;
(ii) the Company's authorized share capital is as set forth in the Final Memorandum under the caption "Capitalization";
(iii) this Agreement, the Indenture and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company (assuming for purposes of delivery that the Company has physically delivered to the other parties thereto such documents originally executed by the Company);
(iv) the Securities have been duly authorized by the Company, and assuming their issuance and authentication in accordance with the terms of the Indenture, the Securities will be duly executed and delivered by the Company (assuming for purposes of delivery that the Company has delivered the Securities against due payment therefor);
(v) neither the issue and sale of the Securities by the Company, the execution and delivery by the Company of the Indenture, this Agreement or the Registration Rights Agreement nor the consummation of any other of the transactions contemplated by this Agreement or the Registration Rights Agreement will conflict with, result in a breach or violation of, or constitute a default under the Memorandum and Articles of Association of the Company or any statute or any order, rule or regulation of any court or governmental agency or body in the Cayman Islands having jurisdiction over the Company or any of its subsidiaries that are incorporated under the laws of the Cayman Islands or any of their properties;
(vi) to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body in the Cayman Islands is required for the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture;
(vii) the statements set forth in the Final Memorandum under the caption "Cayman Islands Tax Consequences", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair in all material respects;
(viii) under the laws of the Cayman Islands, the submission of the Company to the jurisdiction of any New York State or Federal court sitting in the City of New York and the appointment of The Corporation Trust as its authorised agent for the purposes described in Section 13 of this Agreement are valid and binding; service of process effected in the manner set forth in Section 13 of this Agreement will be effective under the laws of the Cayman Islands to confer personal jurisdiction over the Company, assuming this to be the case under the laws of New York; the courts of the Cayman Islands will observe and give effect to the choice of New York law as the governing law of this Agreement; and the Company can ▇▇▇ and be sued in its own name under the laws of the Cayman Islands; and
(ix) the courts of the Cayman Islands will recognise a foreign judgment as the basis for a claim at common law in the Cayman Islands provided such judgment (A) is given by a competent foreign court; (B) imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given; (C) is final; (D) is not in respect of taxes, a fine or a penalty; and (E) was not obtained in a manner and is not of a kind the enforcement of which is contrary to the public policy of the Cayman Islands. All references in this Subsection (a) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company, to the effect that:
(i) the Indenture, assuming its due authorization, and further assuming its due execution and delivery by the Company insofar as such matters are governed by Cayman Islands law, has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other laws affecting creditors' rights generally and general principles of equity (regardless of whether considered in a proceeding in equity or at law); and the Securities, assuming their due authorization, and further assuming their due execution and delivery by the Company insofar as such matters are governed by Cayman Islands law, 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 and the Indenture, will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the enforceability thereof may be subject to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other laws affecting creditors' rights generally and general principles of equity (regardless or whether considered in a proceeding in equity or at law); and the Securities when issued, delivered and sold, will conform to the description thereof contained in the Final Memorandum;
(ii) to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body is required under U.S. federal law or the laws of the State of Texas for the consummation by the Company of the transactions contemplated by this Agreement or by the Registration Rights Agreement, except such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion), and such other approvals (specified in such opinion) as have been obtained;
(iii) neither the issue and sale of the Securities by the Company, the execution and delivery by the Company of the Indenture, this Agreement and the Registration Rights Agreement and the consummation of any other of the transactions contemplated hereby nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under (A) any applicable U.S. federal law or the laws of the State of Texas or (B) the terms of any indenture or other agreement or instrument providing for the borrowing of money known to such counsel and to which the Company or any of its subsidiaries is a party or bound except in the case of clauses (A) and (B) above, such conflict, breach, violation or default that is not, individually or in the aggregate reasonably likely to have a Material Adverse Effect;
(iv) the Company is not required to be registered or regulated as an "investment company" within the meaning of the Investment Company Act;
(v) assuming (A) the accuracy of the representations and warranties and compliance with the agreements of the Company and the Initial Purchasers contained herein, (B) the compliance by the Initial Purchasers with the offering and transfer procedures and restrictions described in the Final Memorandum and (C) the accuracy of the representations and warranties made in accordance with this Agreement and the Final Memorandum by the purchasers to whom you initially resell Securities, it is not necessary in connection with the offer, sale and delivery of the Securities by the Company to the Initial Purchasers pursuant to this Agreement to register the Securities under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act. Such counsel shall also state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and representatives of counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified above) (relying as to factual matters upon statements of officers and other representatives of the Company), no facts have come to such counsel's attention which lead such counsel to believe that at the Execution Time or at the Closing Date the Final Memorandum (other than the financial statements and schedules, the notes thereto and the auditor's reports thereon, and the other financial, numerical and accounting data included or incorporated by reference or omitted therefrom, and the exhibits thereto, as to which such counsel need express no belief), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Such opinion may be limited to the laws of the State of Texas, the general contract law of the State of New York and the federal laws of the United States. Such counsel may rely as to matters of Cayman Islands law upon the opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ furnished pursuant to Subsection 6 (a) of this Agreement and as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Any references in this Subsection (b) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the Closing Date.
(c) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant General Counsel of the Company, to the effect that:
(i) each of Global Marine Inc., GlobalSantaFe Drilling Company, Applied Drilling Technology Inc., Santa Fe Drilling Operations Inc., Key International Drilling Company Limited, GlobalSantaFe Baltic Inc., GlobalSantaFe International Services Inc. and GlobalSantaFe International Drilling Corporation (individually a "Specified Subsidiary" and collectively the "Specified Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with corporate power and authority to own its properties and conduct its business as described in the Final Memorandum, and the Company and each of the Specified Subsidiaries is duly qualified to do transact business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification wherein it owns or leases material properties or conducts material business, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify as would not, individually or in the aggregate, not have a Material Adverse Effect;
(ii) Reserved;
(iii) all of the Company’s outstanding shares of capital stock of each Specified Subsidiary have been duly and validly authorized equity capitalization is and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Memorandum under the heading “Capitalization” and the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the Securities conform to the description thereof contained in the Disclosure Package and the Final Memorandum; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities in accordance with the terms of the applicable Indenture; and the holders of all outstanding shares of capital stock of the Specified Subsidiaries are owned by the Company are not entitled either directly or through wholly owned subsidiaries free and clear of any perfected security interest and to the knowledge of such counsel, any preemptive rights to subscribe other security interests, claims, liens or encumbrances;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the Securities or for the shares of Common Stock issuable upon conversion consummation of the Securitiestransactions contemplated by this Agreement, except such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers, as to which such counsel need express no opinion, and such other approvals (specified in such opinion) as have been obtained;
(iv) neither the Indentures have been duly authorized, executed issuance and delivered sale by the CompanyCompany of the Securities, the execution and constitute legal, valid and binding instruments enforceable against delivery by the Company in accordance with their respective terms (subjectof the Indenture, as to enforcement the consummation of remediesthe transactions contemplated thereby, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles nor the fulfillment 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 Securities will be convertible into Common Stock in accordance with the terms of this Agreement will conflict with, result in a breach or violation of, or constitute a default under (A) any applicable U.S. federal or Texas law, (B) the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound or (C) any judgment, order or decree known to such counsel to be applicable Indentureto the Company or its Specified Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or its Specified Subsidiaries except in the case of clauses (A), (B) and (C) above, such conflict, breach, violation or default that is not, individually or in the aggregate reasonably likely to have a Material Adverse Effect;
(v) the Securities have been duly authorized and executed by the Company and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, except as to 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);
(vi) the statements set forth under the headings “Description of Notes”. “Registration Rights”, “Description of Capital Stock” and “Certain U.S. Federal Tax Considerations” in the Final Memorandum, insofar the Company and its Specified Subsidiaries possess and are in compliance with all approvals, certificates, authorizations, licenses and permits issued by the appropriate state, Federal or foreign regulatory agencies or bodies necessary to conduct their business as described in the Final Memorandum, except where the failure to possess such statements purport approvals, certificates, authorizations, licenses and permits or be in compliance therewith would not be reasonably likely to summarize certain provisions have a Material Adverse Effect, and to the knowledge of such counsel, none of the SecuritiesCompany or its Specified Subsidiaries have received any notice of proceedings relating to the revocation or modification of any such approval, certificate, authorization, license or permit which, individually or in the aggregate, if it became the subject of any unfavorable decision, ruling or finding, would be reasonably likely to have a Material Adverse Effect; and
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or government agency, authority or body or any arbitrator to which the Company or its Specified Subsidiaries is a party which is of a character that would be required to be disclosed in the Final Memorandum if it were filed as a registration statement on Form S-1 with the Commission under the Securities Act, which is not disclosed in the Final Memorandum. Such counsel shall also state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and representatives of counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified above) (relying as to factual matters upon statements of officers and other representatives of the Company), no facts have come to such counsel's attention which lead such counsel to believe that at the Execution Time or at the Closing Date the Final Memorandum (other than the financial statements and schedules, the Indentures, the Registration Rights Agreement notes thereto and the Common Stockauditor's reports thereon, and the other financial, numerical and accounting data included or matters of applicable tax law and regulations, provide in all material respects an accurate and fair summary of such provisions, laws and regulations;incorporated
Appears in 1 contract
Conditions to the Obligations of the Initial Purchasers. The obligations obligation of the several 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, date of this Agreement and as of the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 No Initial Purchaser shall have requested advised the Company that the Time of Sale Disclosure Package or the Final Offering Memorandum, or any amendment thereof or supplement thereto, or any Supplemental Offering Materials, contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and caused Fenwick is required to be stated therein or necessary to make the statements therein not misleading.
(b) On the Closing Date, there shall have been furnished to you, the Representative, the opinion of C▇▇▇▇ & West LLPD▇▇▇▇▇▇, PC, counsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representativesyou, to the effect that:
(i) Each of the Company and the Subsidiaries has been duly incorporated formed and is validly existing as a corporation in good standing under its jurisdiction of formation with all necessary power and authority to own or lease its properties and to conduct its business in all material respects as described in the Time of Sale Disclosure Package and the Final Offering Memorandum. Each of the Company and the Subsidiaries is duly registered or qualified as a foreign entity for the transaction of business under the laws of the State jurisdictions set forth on an exhibit thereto.
(ii) The Company directly owns 100% of Delawarethe issued shares of capital stock in each of the Subsidiaries and such shares of capital stock have been duly authorized and validly issued in accordance with the certificate of incorporation governing such entity and are fully paid and non-assessable; and the Company owns such shares of capital stock free and clear of all liens, with full corporate power and corporate authority to own encumbrances, security interests, equities, charges or leaseclaims, as the case may be, and to operate its properties and conduct its business as other than liens described in the Time of Sale Disclosure Package and the Final Offering Memorandum.
(iii) Other than as set forth in each of the Time of Sale Disclosure Package and the Final Offering Memorandum, to the best of such counsel’s knowledge, there are no legal or governmental proceedings contemplated, threatened or pending to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject that, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate have a Material Adverse Effect or that would materially and adversely affect the consummation of the transactions contemplated hereby or that 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 for such jurisdictions where the failure required to be disclosed in good standingeach of the Time of Sale Disclosure Package and the Final Offering Memorandum.
(iv) The Company has all requisite power and authority to issue, have such corporate power sell and deliver the Securities to be sold by it in accordance with and upon the terms and conditions set forth in this Agreement, the Indenture, the Registration Rights Agreement, the Share Lending Agreement, the Time of Sale Disclosure Package and the Final Offering Memorandum.
(v) Neither the execution, delivery and performance by the Company of this Agreement nor the consummation of the transactions herein contemplated will result in a breach or authorityviolation of any of the terms or provisions of, or constitute a default under, (A) constitutes or will constitute a violation of its Organizational Documents, (B) constitutes or will constitute a breach or violation of, or a default (or an event which, with notice or lapse of time or both, would constitute such a default) under any material agreements relating to so qualify would notborrowed money (the “Reviewed Agreements”), or (C) to such counsel’s knowledge, results or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries, which breaches, violations, defaults or liens, in the case of clause (B) would, individually or in the aggregate, have a Material Adverse Effect;.
(iivi) Reserved;No permit, consent, approval, authorization, order, registration, filing or qualification of or with any court, governmental agency or body having jurisdiction over any of the Company or the Subsidiaries is required for the offering, issuance and sale by the Company of the Securities, the execution, delivery and performance of this Agreement by the Company or the consummation by the Company of the transactions contemplated by this Agreement.
(iiivii) No registration under the Securities Act of the Securities or the Conversion Shares, and no qualification of an indenture under the Trust Indenture Act of 1939, as amended (the “1939 Act”), are required for the sale and delivery of the Securities by the Company to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities in the manner contemplated herein, in the Time of Sale Disclosure Package or in the Final Offering Memorandum.
(viii) The Company’s authorized equity capitalization is as set forth in the Time of Sale Disclosure Package and the Final Memorandum under the heading “Capitalization” and Offering Memorandum; the capital stock of the Company conforms in all material respects to the description thereof contained in the Time of Sale Disclosure Package and the Final Offering Memorandum; the Securities conform to the description thereof contained in the Time of Sale Disclosure Package and the Final Offering Memorandum; the outstanding shares of Common Stock initially issuable upon conversion have been duly and validly authorized and issued and are fully paid and nonassessable; to the knowledge of such counsel, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities or the Conversion Shares; the Securities have been duly 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, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to the Enforceability Exceptions) and will be convertible into Common Stock in accordance with their terms; the Conversion Shares have been duly authorized and, when issued upon conversion of the SecuritiesSecurities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities Securities; and, except as set forth in accordance with the terms Time of the applicable Indenture; Sale Disclosure Package and the holders Final Offering Memorandum, to the knowledge of outstanding such counsel, 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, shares of capital stock of or ownership interests in the Company are not entitled to any preemptive rights to subscribe for the Securities or for the shares of Common Stock issuable upon conversion of the Securitiesoutstanding;
(ivix) the Indentures have This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has been duly authorized, executed and constitute delivered, and, constitutes a legal, valid and binding instruments instrument enforceable against the Company in accordance with their respective its terms (subject, as to 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 Securities will be convertible into Common Stock in accordance with Enforceability Exceptions); the terms of the applicable Indenture;
(v) the Securities have Share Lending Agreement has been duly authorized authorized, executed and executed by the Company delivered, and, when authenticated in accordance with the terms of the applicable Indenture and delivered against payment therefor pursuant to this Agreement, will constitute constitutes a legal, valid and binding obligations of instrument enforceable against the Company entitled to the benefits of the applicable Indenture in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcythe Enforceability Exceptions); the Registration Rights Agreement has been duly authorized, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect executed and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith delivered; and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(vi) the statements set forth under the headings “Description of Notes”. , “Registration RightsDescription of Other Indebtedness”, “Description of Capital Stock” and “Certain U.S. Federal Tax ConsiderationsDescription of Share Lending Agreement” in the Preliminary Offering Memorandum and the Final Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the IndenturesIndenture, the Common Stock and the Registration Rights Agreement and the Common Stock, or matters of applicable tax law and regulationsAgreement, provide in all material respects an accurate and a fair summary of such provisions;
(x) Neither the Company nor any of its Subsidiaries is and, none will be, after giving effect to the offering and sale of the Securities, an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended;
(xi) and such counsel has no reason to believe that (i) the Time of Sale Disclosure Package at the Time of Sale contained 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; or (ii) the Final Offering Memorandum, as of its date or as of the Closing Date, contained any 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 (in each case, other than the financial statements and other financial, oil and gas reserve, oil and gas property and statistical information contained therein, as to which such counsel need to express no opinion); In rendering such opinion, such counsel may rely (x) as to matters involving the application of laws of any jurisdiction other than the State of Oklahoma or the Federal laws of the United States, to the extent they deem proper and regulationsspecified 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 (y) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Further, for agreements governed by New York law, such counsel may opine as to the validity and enforceability under Oklahoma law as if Oklahoma law governed.
(c) On the Closing Date, the Representative shall have received from D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Time of Sale Disclosure Package, the Final Offering Memorandum (together with any supplement thereto) and other related matters as the 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.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Time of Sale Disclosure Package, the Final Offering Memorandum, any supplements to the Final Offering Memorandum and this Agreement and that:
(i) The representations and warranties of the Company 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 Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Since the date of the most recent financial statements included in the Time of Sale Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse effect on 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 Time of Sale Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto).
(e) The Representative shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representative from S▇▇▇▇, ▇▇▇▇▇▇ & Co., independent public accountants, containing statements and information of the type customarily included in accountants’ comfort letters to underwriters with respect to the financial statements and certain financial information contained in the Time of Sale Disclosure Package and the Final Offering Memorandum; provided that, in the case of the comfort letter to be delivered on the Closing Date, the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(f) At the time of execution of this Agreement, the Representative shall have received from each of MHA and S▇▇▇▇▇▇, a letter or letters, in form and substance satisfactory to the, addressed to the Representative with respect to: (i) the estimated quantities of the Company’s proved net reserves, (ii) the future net revenues from those reserves, (iii) their present value as set forth in the Time of Sale Disclosure Package and the Final Offering Memorandum and (iv) such related matters as the Representative shall reasonably request.
(g) Subsequent to the date of this Agreement, 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 Securities 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.
(h) On or after the Time of Sale there shall not have occurred any of the following: (i) a suspension or limitation in trading of the Company’s Common Stock by the Commission or the Nasdaq Global Select Market; (ii) a general suspension or general limitation in trading or setting of minimum prices occurs on the New York Stock Exchange or the Nasdaq Global Select Market; (iii) a banking moratorium declared by either the Federal or New York State authorities; or (iv) an outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on the financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Time of Sale Disclosure Package (exclusive of any supplement thereto).
Appears in 1 contract