Conditions to the Obligations of the Initial Purchasers. The obligations ---------------------------------------------------------- of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Initial Purchasers shall have received from ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice President and Corporate Secretary of the Company, and from other counsel (which may be Company counsel) acceptable to the Initial Purchasers, one or more legal opinions, dated the Closing Date and addressed to the Initial Purchasers, to the cumulative effect that: (i) each of the Company and the Principal Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and where the failure to be so qualified would be materially adverse to the Company and its subsidiaries considered as a whole; (ii) each of the Company and the Principal Subsidiary possesses valid and subsisting franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject to the expiration of the Principal Subsidiary's franchise agreement with the City of Wichita, in each case as described in the Final Memorandum; (iii) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms subject to the Enforceability Limitations; (iv) the Securities have been duly and validly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers under this Agreement, will constitute legal, valid, binding and enforceable obligations of the Company entitled to the benefits of the Indenture subject to the Enforceability Limitations; (v) the Registration Rights Agreement has been duly authorized, executed and delivered and constitutes the legal, valid, binding and enforceable instrument of the Company subject to the Enforceability Limitations; (vi) neither the execution and delivery of the Indenture, the Registration Rights Agreement, the Securities or this Agreement, nor the consummation of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder; (vii) this Agreement has been duly authorized, executed and delivered by the Company; (viii) the Securities, the Indenture and the Registration Rights Agreement conform as to legal matters in all material respects with the statements concerning them set forth in the Final Memorandum under the captions "Description of Notes" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions; (ix) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale of the Securities and the transactions related thereto as contemplated by this Agreement and the Registration Rights Agreement, and no additional consent, approval, authorization, filing with or order of 152 the FERC, the KCC or any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except (i) such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained; (x) 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 the Principal Subsidiary 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, result in a material adverse change in the condition (final or otherwise), prospects, earnings, business or properties of the Company and its Restricted Subsidiaries, taken as a whole; (xi) the statements in the Final Memorandum under the heading "Certain U.S. Federal Income Tax Considerations" and the statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal Proceedings" fairly summarize the matters therein described; (xii) no facts have come to such counsel's attention that lead him to believe that the Final Memorandum at the Execution Time and 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 therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion); (xiii) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and (xiv) the documents of the Company incorporated by reference in the Final Memorandum, as of the respective dates on which they were filed with the Commission pursuant to the Exchange Act, complied as to form in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission under the Exchange Act. In rendering such opinion, 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(a) include any amendment or supplement thereto at the Closing Date. (b) The Company shall have requested and caused Morris, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that: (i) unless the issue and sale of the Securities pursuant to this Agreement violates an existing valid order of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification of or with the KCC is required for the issue and sale of the Securities by the Company pursuant to this Agreement; (ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and (iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities. (c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Company, a legal opinion dated the Closing Date and addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, covering the matters referred to in clauses (iii), (iv), (v), (vii), (viii), the statement with respect to "Certain U.S. Federal Income Tax Considerations" in (xi) and (xiii) of Section 6(a) above. In rendering such opinions, 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, and as to matters relating to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and 6(b) above. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Initial Purchasers at which conferences the contents of the Final Memorandum were discussed and that although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as to matters referred to in their opinion described in clauses (viii) and (xi) referred to above, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts came to their attention which lead them to believe that the Final Memorandum, as of its date, or (as amended or supplemented) as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except in each case as to the financial statements and other financial and statistical data contained therein or incorporated by reference therein, with respect to which they need make no comment). (d) The Initial Purchasers shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) 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. Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing counsel for the Company. (e) The Company shall have furnished to the Initial Purchasers a certificate of the Company, signed by two of its executive officers (one of whom shall be a 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 representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the 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 Final Memorandum (exclusive of any amendment or supplement thereto). (f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the Execution Time and at the Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Initial Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, and that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees thereof committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that: (1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term liabilities of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Report, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; or (2) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Fin
Appears in 1 contract
Conditions to the Obligations of the Initial Purchasers. The ------------------------------------------------------- obligations ---------------------------------------------------------- of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Parent contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time Time") , and the Closing Date, to the accuracy of the statements of the Company and the Parent made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company and the Parent of its their obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers Parent shall have received from furnished to the Representatives the opinion of ▇▇▇▇▇ and ▇. '▇▇▇▇▇▇, Esq., Vice President counsel for the Parent and Corporate Secretary of the Company, and from other counsel Company (which may be Company counsel) acceptable with respect to the Initial Purchasers, one or more legal opinionscertain non-Canadian matters), dated the Closing Date and addressed to the Initial PurchasersDate, to the cumulative effect that:
(i) each of the Company and the Principal Subsidiary has been The Parent is a corporation duly incorporated and is validly existing as a corporation in good standing subsisting under the laws of the State Commonwealth of Kansas, Pennsylvania with full corporate power and authority to own or leaseown, as the case may be, lease and to operate its properties and to conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and where the failure to be so qualified would be materially adverse to the Company and its subsidiaries considered as a wholejurisdictions listed on an exhibit thereto;
(ii) each Each of the Company and Subsidiaries organized under the Principal Subsidiary possesses valid and subsisting franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject to the expiration laws of the Principal Subsidiary's franchise agreement with United States or any State thereof (the City "U.S. Subsidiaries") is either (A) a corporation duly organized, validly existing and in good standing under the laws of Wichitathe jurisdiction of its organization, or (B) a limited partnership duly organized under the laws of the Commonwealth of Pennsylvania, in each case with full corporate or partnership, as the case may be, power and authority to own, lease and operate its properties and to conduct its business as described in the Final Memorandum;
(iii) The authorized capital stock of the Indenture has been duly authorized, executed Parent is as set forth under the caption "Description of Capital Stock of ▇▇▇▇▇▇ ▇▇▇▇▇" in the Final Memorandum; and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company authorized capital stock of the Parent conforms in accordance with its terms subject all material respects as to legal matters to the Enforceability Limitationsdescription thereof contained in the Final Memorandum under the caption "Description of Capital Stock of ▇▇▇▇▇▇ ▇▇▇▇▇";
(iv) The Parent has the Securities have been duly requisite corporate power and validly authorized and, when executed authority to enter into this Agreement 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 to the Enforceability Limitations;
(v) the Registration Rights Agreement has been duly authorized, executed and delivered and constitutes the legal, valid, binding and enforceable instrument of the Company subject to the Enforceability Limitations;
(vi) neither the execution and delivery of the Indenture, the Registration Rights Agreement, the Securities or this Agreement, nor the consummation of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder;
(vii) this Agreement has been duly authorized, executed and delivered by the CompanyParent;
(v) The Indenture has been duly and validly authorized, executed and delivered by the Parent and, assuming due execution and delivery by the Company and the Trustee, constitutes a valid and binding agreement of the Company and the Parent, enforceable in accordance with its terms, subject to customary exceptions reasonably acceptable to counsel for the Initial Purchasers;
(vi) The Registration Agreement (as defined in the Final Memorandum) has been duly and validly authorized, executed and delivered by the Parent and, assuming due execution and delivery by the Company and the Initial Purchasers, is a valid and binding agreement of the Company and the Parent, enforceable in accordance with its terms, subject to customary exceptions reasonably acceptable to counsel for the Initial Purchasers;
(vii) Each of the Domestic Guarantees (as defined in the Indenture) has been duly and validly authorized, executed and delivered by each such Domestic Guarantor (as defined in Indenture) and, constitutes a valid and binding agreement of such Domestic Guarantor, enforceable in accordance with its terms, subject to customary exceptions reasonably acceptable to counsel for the Initial Purchasers;
(viii) Assuming the Securitiesdue authorization, execution and delivery of the Canadian Guarantee (as defined in the Indenture) by the Canadian Subsidiary (as hereinafter defined), the Canadian Guarantee constitutes a valid and binding agreement of the Canadian Subsidiary, enforceable in accordance with its terms, subject to customary exceptions reasonably acceptable to counsel for the Initial Purchasers;
(ix) Assuming the Securities have been duly and validly authorized and executed by the Company and, assuming due authentication of the Securities by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, assuming the Securities will have been validly issued and delivered, the Securities will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and the Registration Rights Agreement conform as to legal matters in all material respects with the statements concerning them set forth under the heading "Description of the Notes" in the Final Memorandum under the captions "Description of Notes" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions;
(ix) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale provisions of the Securities and the transactions related thereto as contemplated by this Agreement and the Registration Rights AgreementIndenture, and no additional consent, approval, authorization, filing with or order provide a fair summary of 152 the FERC, the KCC or any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except (i) such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtainedprovisions;
(x) Neither the Parent nor, to the knowledge of such counsel, any of the U.S. Subsidiaries (for the purposes of clause (A) of this paragraph) and the U.S. Subsidiaries and the Canadian Subsidiary (for purposes of clause (B) of this paragraph) is (A) in violation of its respective certificate of incorporation or bylaws, or other organizational documents, or (B) to the knowledge of such counsel, there is no pending in default in the performance of any material obligation, agreement or threatened actioncondition contained in any bond, suit debenture, note or proceeding other evidence of indebtedness, except as may be disclosed in the Final Memorandum or where any such default or defaults in the aggregate would not be reasonably likely, singularly or in the aggregate, to have a Parent Material Adverse Effect or a Company Material Adverse Effect;
(xi) None of the offer, issuance, sale or delivery of the Securities, the execution, delivery or performance by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Principal Subsidiary Parent of this Agreement, the Indenture and the Registration Agreement, compliance by the Company or its the Parent with the provisions hereof and thereof, or consummation by the Company or the Parent of the transactions contemplated hereby and thereby, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Parent or any of the U.S. Subsidiaries or, to such counsel's knowledge, any material agreement, indenture, lease or other instrument to which the Parent or the Subsidiaries is a party or by which it or any of their property that properties is not adequately bound or, except as disclosed in the Final Memorandum, except in each case for will, to such proceedings that, if the subject of an unfavorable decision, ruling or finding would not singly or in the aggregatecounsel's knowledge, result in a material adverse change the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Parent or any of the U.S. Subsidiaries under any such agreement, indenture, lease or other instrument, or, to such counsel's knowledge, will any such action result in the condition any violation of any existing law or regulation (final assuming compliance with all applicable state securities or otherwiseBlue Sky and foreign laws), prospectsor any ruling, earningsjudgment, business injunction, order or properties decree of any court or governmental entity or instrumentality known to such counsel and applicable to the Company and its Restricted SubsidiariesParent, taken as a wholethe U.S. Subsidiaries or any of their respective properties;
(xixii) Except as set forth in the statements Final Memorandum, and assuming the Securities are sold by the Initial Purchasers and as contemplated in the Final Memorandum under the heading section "Certain Plan of Distribution and assuming the accuracy of the representations and warranties contained herein, no consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Parent or any U.S. Federal Income Tax ConsiderationsSubsidiary for the valid issuance and sale of the Securities to the Initial Purchasers as contemplated by this Agreement; except (a) as may be required under state securities or "Blue Sky" laws or the laws of any foreign jurisdiction in connection with the offer and sale of the statements Notes (b) for any required filing required pursuant to Regulation D of the Securities Act or (c) as would not reasonably be likely to individually or in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal Proceedings" fairly summarize the matters therein described;
(xii) no facts aggregate have come to such counsel's attention that lead him to believe that the Final Memorandum at the Execution Time and on the Closing Date contained a Parent Material Adverse Effect 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 statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion)Company Material Adverse Effect;
(xiii) assuming To the knowledge of such counsel, (A) other than as described or contemplated in the Final Memorandum, there are no legal or governmental proceedings pending or threatened against the Parent or any of the U.S. Subsidiaries, or to which the Parent or any of the U.S. Subsidiaries, or any of their property, is subject, which are required to be described in the Final Memorandum (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Parent or any of the U.S. Subsidiaries, of a character, that are required to be described in the Final Memorandum (or any amendment or supplement thereto) that are not described as required;
(xiv) Assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the ActSecurities Act is required, and no qualification of an indenture the Indenture under the Trust Indenture ActAct of 1939, are required as amended, is necessary, for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and
(xivxv) the documents of the Company incorporated by reference in the Final Memorandum, as of the respective dates on which they were filed with the Commission pursuant to the Exchange Act, complied as to form in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission under the Exchange Act. In rendering such opinion, counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers Each 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 MorrisParent is not and, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) unless the issue and upon sale of the Securities pursuant to this be issued and sold in accordance with the Purchase Agreement violates an existing valid order and upon application of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification net proceeds from such sale as described in the Final Memorandum under the caption "Use of or with Proceeds," will not be an "investment company" within the KCC is required for the issue and sale meaning of the Securities by the Company pursuant to this Agreement;
(ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and
(iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities.
(c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Company, a legal opinion dated the Closing Date and addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, covering the matters referred to in clauses (iii), (iv), (v), (vii), (viii), the statement with respect to "Certain U.S. Federal Income Tax Considerations" in (xi) and (xiii) of Section 6(a) above. In rendering such opinions, 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, and as to matters relating to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and 6(b) above1940 Act. In addition, such counsel shall state that they have participated although counsel has not undertaken, except as otherwise indicated in conferences with officers their opinion, to determine independently, and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Initial Purchasers at which conferences the contents of the Final Memorandum were discussed and that although they are not passing upon and do does not assume any responsibility for for, the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as to matters referred to Memorandum, such counsel has participated in their opinion described in clauses (viii) and (xi) referred to above, on the basis preparation of the foregoing (relying as to materiality to a large extent upon the opinions of officersFinal Memorandum, counsel including general review and other representatives discussion of the Company)contents thereof, no facts came and nothing has come to their the attention which of such counsel that would lead them to believe that the Final Memorandum, as of its date, or (as amended or supplemented) date and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Final Memorandum, in the light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Final Memorandum, as of its respective date, and as of the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated in the Final Memorandum or necessary in order to make the statements therein, in the case of the Final Memorandum, in the light of the circumstances under which they were made, not misleading (except in each case as it being understood that such counsel need express no statement with respect to the financial statements, financial schedules, pro forma financial statements and the notes thereto and other financial and statistical data contained therein or incorporated by reference therein, with respect to which they need make no commentincluded in the Final Memorandum).
(d) The Initial Purchasers shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial Purchasers. In rendering such opinion, such opinion or opinionscounsel may, dated the Closing Date and addressed as to factual matters, rely, to the Initial Purchasersextent counsel deems proper, with respect upon written certificates or statements of officers of the Company, the Parent and public officials. The foregoing opinion may be limited to the issuance and sale federal laws of the Securities, United States of America and the Indenture, Commonwealth of Pennsylvania and the Registration Rights Agreement, General Corporation Law of the State of Delaware. All references to this Section 6(a) to the Final Memorandum (as amended shall be deemed to include any amendment or supplemented supplement thereto at the Closing Date) and other related matters as the 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. Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing counsel for the Company.
(eb) The Company You shall have furnished to the Initial Purchasers a certificate of the Company, signed by two of its executive officers (one of whom shall be a 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 representations and warranties of the Company in this Agreement are true and correct in all material respects received on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the 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 Final Memorandum (exclusive of any amendment or supplement thereto).
(f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations an opinion of ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, at Stirling, Scales, Canadian counsel for the Execution Time Company and at the Parent, dated the Closing DateDate and addressed to you, the Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to the Initial Purchasers letters, dated respectively as Representatives of the Execution Time and as of the Closing Date, in form and substance satisfactory to the several Initial Purchasers, confirming that they are independent accountants within to the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, and effect that:
(i) in their opinion The Company is an unlimited liability company duly organized and validly existing under the audited financial statements laws of the jurisdiction of its organization with full corporate power and financial statement schedules included or incorporated authority to own, lease, and operate its properties and to conduct its business as described in the Final Memorandum (and reported on by them comply any amendment or supplement thereto); and all of the issued and outstanding shares of capital stock of the Company are registered in the name of PLC Command I, L.P. as to form in all material respects with the applicable accounting requirements 659 common shares and PLC Command II, L.P. as to 659 further common shares, each of the Exchange Act which are outstanding and the related published rules fully paid and regulations thereunder;nonassessable.
(ii) on Archivex Limited (the basis "Canadian Subsidiary") is a corporation duly organized and validly existing under the laws of carrying out certain specified procedures the jurisdiction of its organization with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Memorandum;
(but iii) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver the Securities to the Initial Purchasers as provided herein, and this Agreement has been duly authorized, executed and delivered by the Company, and this Agreement and the obligations of Company thereunder, is not an examination contrary to and does not violate any applicable laws of the province of Nova Scotia or the federal laws of Canada;
(iv) The Company has the requisite corporate power and authority to enter into the Indenture and the Indenture has been duly and validly authorized, executed and delivered by the Company, and the Indenture and the obligations of parties thereunder, is not contrary to and does not violate any applicable laws of the province of Nova Scotia or the federal laws of Canada;
(v) The Company has the requisite corporate power and authority to enter into the Registration Agreement (as defined in the Final Memorandum) and the Registration Agreement has been duly and validly authorized, executed and delivered by the Company, and Registration Agreement and the obligations of the Company thereunder, is not contrary to and does not violate any applicable laws of the province of Nova Scotia or the federal laws of Canada;
(vi) The Canadian Subsidiary has the requisite corporate power and authority to enter into the Canadian Guarantee and the Canadian Guarantee has been duly and validly authorized, executed and delivered by the Canadian Subsidiary, and the Canadian Guarantee and the obligations of the Canadian Subsidiary thereunder, is not contrary to and does not violate any applicable laws of the province of Nova Scotia or the federal laws of Canada;
(vii) The Company has the requisite corporate power and authority to issue the Securities and the Securities have been duly and validly authorized and executed by the Company and, assuming due authentication of the Securities by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of terms hereof, will have been validly issued and delivered, and the minutes of Notes and the meetings of the stockholders, directors and committees thereof committees obligations of the Company thereunder, is not contrary to and its subsidiaries; and inquiries of certain officials does not violate any applicable laws of the province of Nova Scotia or the federal laws of Canada;
(viii) Neither the Company who have responsibility for financial and accounting matters nor, to the knowledge of such counsel, the Canadian Subsidiary is in violation of its respective certificate of incorporation or bylaws, or other organizational documents,
(ix) None of the Company and its subsidiaries as to transactions and events subsequent to December 31offer, 2001issuance, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date sale or delivery of the letterSecurities, in the total long-term liabilities execution, delivery or performance by the Company of this Agreement, the Indenture and the Registration Rights Agreement, compliance by the Company with the provisions hereof and thereof, or consummation by the Company of the Company transactions contemplated hereby and its subsidiaries thereby, conflicts or cumulative preferred stock will conflict with or common stock constitutes or will constitute a breach of, or a default under, the certificate of incorporation, memorandum of association, articles of association or bylaws, or other organizational documents, of the Company or decreases the Canadian Subsidiary, or, to such counsel's knowledge, will any such action result in the shareholders' equity any violation of the Company as compared any existing law or regulation (assuming compliance with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Reportall applicable provincial securities laws), or for the period from January 1any ruling, 2002 judgment, injunction, order or decree of any court or governmental entity or instrumentality known to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company counsel and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as applicable to the significance thereof unless said explanation is not deemed necessary by Company, the Initial Purchasers; orCanadian Subsidiary or any of their respective properties;
(2x) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or
(iii) they have performed certain No consent, approval, authorization or other specified procedures as a result of which they determined that certain information of an accountingorder of, financial or statistical nature (which is limited to accountingregistration or filing with, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Finany c
Appears in 1 contract
Sources: Purchase Agreement (Archivex LTD)
Conditions to the Obligations of the Initial Purchasers. The obligations ---------------------------------------------------------- of the Initial Purchasers to purchase the Capital Securities shall be subject to the accuracy theaccuracy of the representations and warranties on the part of the Company and the Trust contained herein at as of the date and time that this Agreement is executed (the "Execution Time Time") and the Closing Date, to the accuracy of the statements of the Company and the Trust made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Trust of its their obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers Company shall have received from furnished to the Representative the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Vice President and Corporate Secretary of counsel to the Company, and from other counsel (which may be Company counsel) acceptable to the Initial Purchasers, one or more legal opinions, dated the Closing Date and Date, addressed to the Initial Purchasers, Purchasers to the cumulative effect that:
(i) each of the Company and PXRE Reinsurance Company and Transnational Reinsurance Company (individually, a "Subsidiary" and collectively, the Principal Subsidiary "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansasjurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, ; and the Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction the States of New Jersey and New York, which are the only jurisdictions in which the Company owns or leases any material real properties or conducts any material business and which requires such qualification qualifications and where in which the failure to be so qualified would be materially have a material adverse to effect on the business or condition (financial or otherwise) of the Company and its subsidiaries considered taken as a whole;; and PXRE Reinsurance Company is duly licensed and in good standing under the insurance laws of the States of Connecticut, New York and New Jersey, and Transnational Reinsurance Company is duly licensed and in good standing under the insurance laws of the States of Connecticut and New Jersey.
(ii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Memorandum and based solely on a review of the stock books of each of such Subsidiaries, as identified to such counsel as being true and correct by the Company, and on a certificate of an executive officer of the Company, and without any further independent verification, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any pledge, security interest, claim, lien or other encumbrance (other than covenants under the Indenture dated as of August 31, 1993 (the "Senior Note Indenture") between the Company and State Street Bank and Trust Company (as Successor Trustee to The First National Bank of Boston), as Successor Trustee (the Principal Subsidiary possesses valid and subsisting franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject "Senior Note Trustee") relating to the expiration Company's 9-3/4% Senior Notes due 2003 (the "Senior Notes")); and based solely on a review of the Principal Subsidiary's franchise agreement with stock book of the City Trust, as identified to such counsel as being true and correct by the Administrators, and a certificate of Wichitaan executive officer of the Company, in each case as described in and without any further independent verification, all issued and outstanding Common Securities of the Final MemorandumTrust are owned by the Company either directly or through wholly owned subsidiaries free and clear of any pledge, security interest, claim, lien or other encumbrance (other than covenants under the Senior Note Indenture);
(iii) each of the Indenture and the Guarantee Agreements has been duly authorized, executed and delivereddelivered by the Company, and (in the case of the Indenture and the Capital Securities Guarantee, respectively, assuming it is duly authorized, executed and delivered by the Indenture Trustee and the Guarantee Trustee, respectively) constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms terms, subject to Bankruptcy and Equity; the Enforceability Limitations;
(iv) the Subordinated Debt Securities have been duly and validly authorized andand delivered to the Indenture Trustee for authentication in accordance with the Indenture, and when executed and authenticated by the Indenture Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers under this AgreementTrust, will constitute legal, valid, valid and binding and enforceable obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject to the Enforceability LimitationsBankruptcy and Equity;
(viv) this Purchase Agreement and the Registration Rights Agreement has have been duly authorized, executed and delivered and constitutes by the legal, valid, binding and enforceable instrument of Company; (v) the Company subject to the Enforceability Limitations;
(vi) neither the execution and delivery of the Indenture, the Registration Rights Agreement, the Securities or this Agreement, nor the consummation of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder;
(vii) this Agreement Declaration has been duly authorized, executed and delivered by the Company;
(viii) the Securities, the Indenture and the Registration Rights Agreement conform as to legal matters in all material respects with the statements concerning them set forth in the Final Memorandum under the captions "Description of Notes" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions;
(ix) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale of the Securities and the transactions related thereto as contemplated by this Agreement and the Registration Rights Agreement, and no additional consent, approval, authorization, filing with or order of 152 the FERC, the KCC or any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except (i) such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained;
(x) 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 the Principal Subsidiary 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, result in a material adverse change in the condition (final or otherwise), prospects, earnings, business or properties of the Company and its Restricted Subsidiaries, taken as a whole;
(xi) the statements in the Final Memorandum under the heading "Certain U.S. Federal Income Tax Considerations" and the statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal Proceedings" fairly summarize the matters therein described;
(xii) no facts have come to such counsel's attention that lead him to believe that the Final Memorandum at the Execution Time and 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 therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(xiii) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and
(xiv) the documents of the Company incorporated by reference in the Final Memorandum, as of the respective dates on which they were filed with the Commission pursuant to the Exchange Act, complied as to form in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission under the Exchange Act. In rendering such opinion, 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(a) include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused Morris, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) unless the issue and sale of the Securities pursuant to this Agreement violates an existing valid order of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification of or with the KCC is required for the issue and sale of the Securities by the Company pursuant to this Agreement;
(ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and
(iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities.
(c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Company, a legal opinion dated the Closing Date and addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, covering the matters referred to in clauses (iii), (iv), (v), (vii), (viii), the statement with respect to "Certain U.S. Federal Income Tax Considerations" in (xi) and (xiii) of Section 6(a) above. In rendering such opinions, 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, and as to matters relating to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and 6(b) above. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Initial Purchasers at which conferences the contents of the Final Memorandum were discussed and that although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as to matters referred to in their opinion described in clauses (viii) and (xi) referred to above, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts came to their attention which lead them to believe that the Final Memorandum, as of its date, or (as amended or supplemented) as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except in each case as to the financial statements and other financial and statistical data contained therein or incorporated by reference therein, with respect to which they need make no comment).
(d) The Initial Purchasers shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) 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. Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing counsel for the Company.
(e) The Company shall have furnished to the Initial Purchasers a certificate of the Company, signed by two of its executive officers (one of whom shall be a 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 representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the 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 Final Memorandum (exclusive of any amendment or supplement thereto).
(f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the Execution Time and at the Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Initial Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, and that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunderAdministrators;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees thereof committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term liabilities of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Report, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; or
(2) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Fin
Appears in 1 contract
Sources: Purchase Agreement (Pxre Corp)
Conditions to the Obligations of the Initial Purchasers. The obligations ---------------------------------------------------------- of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and Time, the Closing DateDate 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 Initial Purchasers Company shall have received from ▇▇▇▇▇ ▇. ▇▇▇▇▇requested and caused Walkers, Esq., Vice President and Corporate Secretary of Cayman Islands counsel for the Company, and from other counsel (which may be Company counsel) acceptable to furnish to the Initial Purchasers, one or more legal opinionsRepresentatives its opinion, dated the Closing Date and addressed to the Initial PurchasersRepresentatives, to the cumulative effect that:
(i) each Each of the Company and each of Apex Silver Mines, Andean Silver Corporation LDC and ASC Bolivia LDC (the Principal Subsidiary has been "Cayman Islands Subsidiaries") is a company duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the State of KansasCayman Islands, with full corporate power and an authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and where qualification, except to the extent that failure to be so qualified qualify would be materially adverse to the Company and its subsidiaries considered as not have a wholeMaterial Adverse Effect;
(ii) each All outstanding shares of the Cayman Islands Subsidiaries are owned by the Company and the Principal Subsidiary possesses valid and subsisting franchiseseither directly or through wholly owned subsidiaries and, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject to the expiration of the Principal Subsidiary's franchise agreement with the City of Wichita, in each case except as described in the Final Memorandum, owned free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interest, claim, lien or encumbrances;
(iii) The Company's authorized equity capitalization is as set forth in the Indenture has Final Memorandum, the shares of the Company conforms to the description thereof contained in the Final Memorandum and the Securities conform to the description thereof contained in the Final Memorandum. The outstanding Ordinary Shares have been duly authorized, executed authorized and delivered, validly issued and constitutes a legal, valid are fully paid and binding instrument enforceable against nonassessable; the Company in accordance with its terms subject to the Enforceability Limitations;
(iv) Ordinary Shares initially issuable upon conversion of the Securities have been duly and validly authorized and, when executed and authenticated in accordance with the provisions issued upon conversion of the Indenture Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Initial Purchasers under pursuant to this Agreement, Agreement will constitute legal, valid, binding be fully paid and enforceable obligations nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the benefits Securities or the Ordinary Shares issuable upon conversion thereof. The Company has reserved sufficient Ordinary Shares for issuance upon conversion of the Indenture subject to the Enforceability LimitationsSecurities;
(viv) The Indenture, the Securities, this Agreement and the Registration Rights Agreement has have been duly authorized, executed and delivered and constitutes authorized by all necessary corporate action on the legal, valid, binding and enforceable instrument part of the Company subject to the Enforceability Limitations;
(vi) neither the execution and delivery of the Indenture, the Registration Rights Agreement, the Securities or this Agreement, nor the consummation of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder;
(vii) this Agreement has have been duly authorized, executed and delivered by the Company;
(viiiv) the Securities, the Indenture and the Registration Rights Agreement conform Except as to legal matters in all material respects with the statements concerning them set forth in the Final Memorandum under the captions "Description of Notes" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions;
(ix) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale of the Securities and the transactions related thereto as contemplated by this Agreement and the Registration Rights Agreement, and no additional consent, approval, authorization, filing with or order of 152 the FERC, the KCC or any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except (i) such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained;
(x) to the knowledge of such counselMemorandum, there is is, to our current actual knowledge, no pending or threatened action, suit or proceeding by pending against the Company, its subsidiaries or their respective properties in any court or before any court governmental authority or governmental agency, authority or body arbitration board or any arbitrator involving tribunal of the Company or the Principal Subsidiary or its or their property that is not adequately disclosed in the Final Memorandum, except in each case for such proceedings thatCayman Islands which, if adversely determined, could reasonably be expected to have a Material Adverse Effect; and the subject summaries of an unfavorable decision, ruling or finding would not singly or in the aggregate, result in a material adverse change in the condition (final or otherwise), prospects, earnings, business or properties of the Company legal and its Restricted Subsidiaries, taken as a whole;
(xi) the statements in the Final Memorandum regulatory matters and proceedings under the heading "Certain U.S. Federal Income Tax Considerations" and Description of the statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal ProceedingsOrdinary Stock" fairly summarize the matters therein described;
(xiivi) no facts have come to such counsel's attention that lead him to believe that Neither the Final Memorandum at issue and sale of the Execution Time and on Securities, nor the Closing Date contained consummation of any other of the transactions contemplated herein 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 Indenture or Registration Rights Agreement nor the fulfillment of the circumstances under which they were madeterms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (a) the Memorandum and Articles of Association of the Company or its subsidiaries, or (b) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority of the Cayman Islands having jurisdiction over the Company or its subsidiaries or any of its or their respective properties, except where such breach, violation or imposition would not misleading (individually or in each case, other than the statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion)aggregate have a Material Adverse Effect;
(xiiivii) assuming The Company's agreement to the accuracy choice of law provisions set forth in Section 14 hereof will be recognized by the courts of the representations Cayman Islands; the Company can ▇▇▇ and warranties be sued in its own name under the laws of the Cayman Islands, the irrevocable submission of the Company to the non-exclusive personal jurisdiction of a New York Court, the waiver by the Company of any objection to the venue of a proceeding of a New York Court and compliance the agreement of the Company that this Agreement shall be governed by and construed in accordance with the agreements contained herein, no registration laws of the Securities under State of New York are legal, valid and binding; and judgment obtained in a New York Court arising out of or in relation to the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers obligations of the Securities Company under this Agreement, not being a sum payable in respect of taxes or other charges of a like nature or a fine or other penalty, is enforceable against the Company in the manner contemplated by this Agreementcourts of the Cayman Islands; and
(xivviii) The Company is not entitled to any immunity on the documents basis of the Company incorporated by reference sovereignty or otherwise in the Final Memorandum, respect of its obligations under this Agreement and could not successfully interpose any such immunity as a defense in any suit or action brought or maintained in respect of the respective dates on which they were filed with the Commission pursuant to the Exchange Act, complied as to form in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission its obligations under the Exchange Actthis Agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the laws of the Cayman Islands, 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 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 Morris, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) unless the issue and sale of the Securities pursuant to this Agreement violates an existing valid order of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification of or with the KCC is required for the issue and sale of the Securities by the Company pursuant to this Agreement;
(ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and
(iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities.
(c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to for the Company, a legal opinion to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Except as disclosed in the Final Memorandum, there are, to our current actual knowledge, (a) no outstanding subscriptions, warrants, options, calls, claims, commitments, convertible securities or other agreements or arrangements under which the Company is or may be obligated to issue shares of its capital stock, and (b) no preemptive or similar rights to subscribe for or to purchase capital stock of the Company;
(ii) Assuming the accuracy of the representations of the Initial Purchasers contained in the Purchase Agreement, the sale and in form reasonably satisfactory delivery of the Securities by the Company to the Initial Purchasers, covering the matters referred to in clauses offer and sale of the Securities by the Initial Purchasers and the issuance of Ordinary Shares upon conversion of the Securities, under the circumstances contemplated by the Purchase Agreement and the Final Memorandum, are exempt from the registration requirements of the Securities Act of 1933, as amended;
(iii)) Assuming the accuracy of the representations of the Initial Purchasers contained in the Purchase Agreement, no qualification of an indenture under the Trust Indenture Act of 1939, as amended, is required in connection with the sale and delivery of the Securities by the Company to the Initial Purchasers, the offer and sale of the Securities by the Initial Purchasers and the issuance of Ordinary Shares upon conversion of the Securities, under the circumstances contemplated by the Purchase Agreement and the Final Memorandum;
(iv)) The execution and delivery of the Purchase Agreement, the Indenture and the Registration Rights Agreement, and the issuance and sale of the Securities, and the performance by the Company of their respective terms, including the issuance of Ordinary Shares upon conversion of the Securities will not breach or result in a violation of (a) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument filed as a material contract by the Company under The Securities Exchange Act of 1934 to which the Company or its subsidiaries is a party or bound or to which their respective property is subject, or (c) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their respective properties, except where such breach, violation or imposition would not individually or in the aggregate have a Material Adverse Effect;
(v)) No consent, approval or authorization of, or designation, declaration or filing with, any governmental authority in the United States is required in connection with the valid execution, delivery and performance by the Company of the Purchase Agreement, Indenture or Registration Rights Agreement or the issuance and sale of the Securities, other than (a) as may be required under the blue sky or securities laws of any jurisdiction in which the Securities are offered or sold, and (b) such consents, approvals, authorizations, designations, declarations or filings as have been made or obtained on or before the date hereof;
(vi) Except as set forth in the Final Memorandum, there is, to our current actual knowledge, no action, suit or proceeding pending against the Company, its subsidiaries or their respective properties in any court or before any governmental authority or agency, or arbitration board or tribunal which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(vii)) The statements set forth under the headings "Description of Notes" and "Description of the Ordinary Shares" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indenture, the Ordinary Shares and the Registration Rights Agreement, provide a fair summary of such provisions;
(viii)) The Company is not and, after giving effect to the statement with respect 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 "Certain U.S. Federal Income Tax Considerationsinvestment company" as defined in (xi) and (xiii) the Investment Company Act of Section 6(a) above. 1940, as amended, without taking account of any exemption arising out of the number of holders of the Company's securities; In rendering such opinionsopinion, such counsel may rely as to matters of fact, to the extent they deem proper proper, on certificates of responsible officers of the Company and public officials, and as to matters relating . References to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and Final Memorandum in this Section 6(b) aboveinclude any amendment or supplement thereto at the Closing Date. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and advise the Initial Purchasers at which conferences to the contents effect that, in connection with such counsel's participation in the preparation of the Final Memorandum were discussed Memorandum, while it has not independently verified the accuracy, completeness or fairness of the statements contained therein (except with respect to the matters opined upon in paragraphs (xiv) and (xv) above), and subject to the fact that although they the limitations inherent in the examination made by, and the knowledge available to, such counsel are such that it is unable to assume, and does not passing upon and do not assume assume, any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as with respect to the matters referred to opined upon in their opinion described in clauses paragraphs (viiixiv) and (xixv) referred to above), on the basis of its examination and participation in conferences with certain officers of the foregoing (relying as to materiality to a large extent upon the opinions of officersCompany, counsel its independent public accountants and other representatives of the Company)Initial Purchasers in connection with the preparation of the Final Memorandum, it can advise the Initial Purchasers supplementally, as of the date thereof or the date of such opinion, that it has no facts came to their attention which lead them to believe current actual knowledge that the Final Memorandum, as of its datethe date thereof or the date of such opinion, or (as amended or supplemented) as of the Closing Date, contained an contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except in each case misleading. However, such counsel need not express any belief as to the financial statements and the notes thereto or the schedules or other financial and financial, statistical or reserve data contained therein in the Final Memorandum or incorporated by reference therein, with respect to which they need make no comment)omitted therefrom.
(dc) The Initial Purchasers Company shall have received from Sidley ▇▇▇▇▇▇ requested and caused Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ LLP▇, L.L.P., counsel for the Initial PurchasersCompany, such opinion or opinionsto furnish to the Representatives its opinion, dated the Closing Date and addressed to the Initial PurchasersRepresentatives, with respect to the issuance and sale of effect that:
(i) The Indenture, the Securities, this Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company under New York law;
(ii) The Indenture is a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as the enforceability thereof may be subject to or limited by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors, and (b) general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law;
(iii) The Securities are legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture, will be convertible into Ordinary Shares in accordance with their terms and enforceable against the Registration Rights AgreementCompany in accordance with their terms, except as the enforceability thereof may be subject to or limited by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors, and (b) general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law;
(iv) The statements in the Final Memorandum under the heading "Certain Tax Considerations" fairly summarize the matters therein described.
(as amended or supplemented at the Closing Dated) and other related matters as the Initial Purchasers may reasonably require, and the The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. Sidley requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing ▇▇, Bolivian counsel for the Company.
(e) The Company shall have furnished , to furnish to the Initial Purchasers a certificate of the Company, signed by two of Representatives its executive officers (one of whom shall be a principal financial or accounting officer of the Company)opinion, dated the Closing DateDate and addressed to the Representatives, 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) Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. is a corporation (sociedad anonima) existing under the representations and warranties laws of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; andBolivia;
(ii) since Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. has all necessary power and authority to own property and carry on its business;
(iii) Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. is the date registered and beneficial owner of the most recent financial statements included mining concessions listed on a schedule attached thereto, free and clear of all encumbrances in favor of, and any rights and interests of, any other person;
(iv) The authorized capital and the Final Memorandum (exclusive issued and outstanding common shares of any amendment or supplement thereto), there has been no material adverse change in Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. as well as the condition (financial or otherwise), prospects, earnings, business or properties registered holders of the Company and its subsidiariesissued common shares, taken are as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations of follows: Outstanding Shares: 4,160,610 ASC Bolivia L.D.C. Sucursal Bolivia: Shares Held 4,160,608 Oscar ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the Execution Time and at the Closing Date, the Company shall have requested and caused ▇: 1 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to Achabal: 1
(v) ASC Bolivia L.D.C. Sucursal Bolivia is a 100% owned branch of ASC Bolivia L.D.C. a limited duration company organized and existing under the Initial Purchasers letters, dated respectively as laws of the Execution Time Cayman Islands, duly registered under the laws of Bolivia.
(vi) ASC Bolivia L.D.C. Sucursal Bolivia has all necessary power and as authority to own property and carry on its business.
(vii) ASC Bolivia L.D.C. Sucursal Bolivia is the Registered and beneficial owner of the Closing Datemining concessions listed in Schedule "A" attached thereto, free and clear of all encumbrances in form and substance satisfactory to the Initial Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunderfavor of, and that:any rights and interests of, any other person and has the right to exploit such mining concessions.
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees thereof committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term liabilities of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Report, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; or
(2) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Fin
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 at the Execution Time and Time, the Closing DateDate 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 Initial Purchasers Company shall have received from ▇▇▇▇▇ ▇. ▇▇▇▇▇requested and caused Walkers, Esq., Vice President and Corporate Secretary of Cayman Islands counsel for the Company, and from other counsel (which may be Company counsel) acceptable to furnish to the Initial Purchasers, one or more legal opinionsRepresentative its opinion, dated the Closing Date and addressed to the Initial PurchasersRepresentative, to the cumulative effect that:
(i) each Each of the Company and each of Apex Silver Mines, Andean Silver Corporation LDC and ASC Bolivia LDC (the Principal Subsidiary has been “Cayman Islands Subsidiaries”) is a company duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the State of KansasCayman Islands, with full corporate power and an authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and where qualification, except to the extent that failure to be so qualified qualify would be materially adverse to the Company and its subsidiaries considered as not have a wholeMaterial Adverse Effect;
(ii) each All outstanding shares of the Cayman Islands Subsidiaries are owned by the Company and the Principal Subsidiary possesses valid and subsisting franchiseseither directly or through wholly owned subsidiaries and, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject to the expiration of the Principal Subsidiary's franchise agreement with the City of Wichita, in each case except as described in the Final Memorandum, owned free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interest, claim, lien or encumbrances;
(iii) The Company’s authorized equity capitalization is as set forth in the Indenture has Final Memorandum, the shares of the Company conform to the description thereof contained in the Final Memorandum and the Securities conform to the description thereof contained in the Final Memorandum. The outstanding Ordinary Shares have been duly authorized, executed authorized and delivered, validly issued and constitutes a legal, valid are fully paid and binding instrument enforceable against nonassessable; the Company in accordance with its terms subject to the Enforceability Limitations;
(iv) Ordinary Shares initially issuable upon conversion of the Securities have been duly and validly authorized and, when executed and authenticated in accordance with the provisions issued upon conversion of the Indenture Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Initial Purchasers under pursuant to this Agreement, Agreement will constitute legal, valid, binding be fully paid and enforceable obligations nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the benefits Securities or the Ordinary Shares issuable upon conversion thereof. The Company has reserved sufficient Ordinary Shares for issuance upon conversion of the Indenture subject to the Enforceability LimitationsSecurities;
(viv) The Indenture, the Securities, this Agreement and the Registration Rights Agreement has have been duly authorized, executed and delivered and constitutes authorized by all necessary corporate action on the legal, valid, binding and enforceable instrument part of the Company subject to the Enforceability Limitations;
(vi) neither the execution and delivery of the Indenture, the Registration Rights Agreement, the Securities or this Agreement, nor the consummation of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder;
(vii) this Agreement has have been duly authorized, executed and delivered by the Company;
(viiiv) the Securities, the Indenture and the Registration Rights Agreement conform Except as to legal matters in all material respects with the statements concerning them set forth in the Final Memorandum under the captions "Description of Notes" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions;
(ix) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale of the Securities and the transactions related thereto as contemplated by this Agreement and the Registration Rights Agreement, and no additional consent, approval, authorization, filing with or order of 152 the FERC, the KCC or any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture and the Registration Rights Agreement, except (i) such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained;
(x) to the knowledge of such counselMemorandum, there is is, to our current actual knowledge, no pending or threatened action, suit or proceeding by pending against the Company, its subsidiaries or their respective properties in any court or before any court governmental authority or governmental agency, authority or body arbitration board or any arbitrator involving tribunal of the Company or the Principal Subsidiary or its or their property that is not adequately disclosed in the Final Memorandum, except in each case for such proceedings thatCayman Islands which, if adversely determined, could reasonably be expected to have a Material Adverse Effect; and the subject summaries of an unfavorable decision, ruling or finding would not singly or in the aggregate, result in a material adverse change in the condition (final or otherwise), prospects, earnings, business or properties of the Company legal and its Restricted Subsidiaries, taken as a whole;
(xi) the statements in the Final Memorandum regulatory matters and proceedings under the heading "Certain U.S. Federal Income Tax Considerations" and “Description of the statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal Proceedings" Ordinary Shares” fairly summarize the matters therein described;
(xiivi) no facts have come to such counsel's attention that lead him to believe that Neither the Final Memorandum at issue and sale of the Execution Time and on Securities, nor the Closing Date contained consummation of any other of the transactions contemplated herein 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 Indenture or Registration Rights Agreement nor the fulfillment of the circumstances under which they were madeterms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (a) the Memorandum and Articles of Association of the Company or its subsidiaries, or (b) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority of the Cayman Islands having jurisdiction over the Company or its subsidiaries or any of its or their respective properties, except where such breach, violation or imposition would not misleading (individually or in each case, other than the statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion)aggregate have a Material Adverse Effect;
(xiiivii) assuming The Company’s agreement to the accuracy choice of law provisions set forth in Section 14 hereof will be recognized by the courts of the representations Cayman Islands; the Company can ▇▇▇ and warranties be sued in its own name under the laws of the Cayman Islands, the irrevocable submission of the Company to the non-exclusive personal jurisdiction of a New York Court, the waiver by the Company of any objection to the venue of a proceeding of a New York Court and compliance the agreement of the Company that this Agreement shall be governed by and construed in accordance with the agreements contained herein, no registration laws of the Securities under State of New York are legal, valid and binding; and judgment obtained in a New York Court arising out of or in relation to the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers obligations of the Securities Company under this Agreement, not being a sum payable in respect of taxes or other charges of a like nature or a fine or other penalty, is enforceable against the Company in the manner contemplated by this Agreementcourts of the Cayman Islands; and
(xivviii) The Company is not entitled to any immunity on the documents basis of the Company incorporated by reference sovereignty or otherwise in the Final Memorandum, respect of its obligations under this Agreement and could not successfully interpose any such immunity as a defense in any suit or action brought or maintained in respect of the respective dates on which they were filed with the Commission pursuant to the Exchange Act, complied as to form in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission its obligations under the Exchange Actthis Agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the laws of the Cayman Islands, 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 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 Morris, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) unless the issue and sale of the Securities pursuant to this Agreement violates an existing valid order of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification of or with the KCC is required for the issue and sale of the Securities by the Company pursuant to this Agreement;
(ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and
(iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities.
(c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to for the Company, a legal opinion to furnish to the Representative its opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) Except as disclosed in the Final Memorandum, there are, to our current actual knowledge, (a) no outstanding subscriptions, warrants, options, calls, claims, commitments, convertible securities or other agreements or arrangements under which the Company is or may be obligated to issue shares of its capital stock, and (b) no preemptive or similar rights to subscribe for or to purchase capital stock of the Company;
(ii) Assuming the accuracy of the representations of the Initial Purchasers contained in the Purchase Agreement, the sale and in form reasonably satisfactory delivery of the Securities by the Company to the Initial Purchasers, covering the matters referred to in clauses offer and sale of the Securities by the Initial Purchasers and the issuance of Ordinary Shares upon conversion of the Securities, under the circumstances contemplated by the Purchase Agreement and the Final Memorandum, are exempt from the registration requirements of the Securities Act of 1933, as amended;
(iii)) Assuming the accuracy of the representations of the Initial Purchasers contained in the Purchase Agreement, no qualification of an indenture under the Trust Indenture Act of 1939, as amended, is required in connection with the sale and delivery of the Securities by the Company to the Initial Purchasers, the offer and sale of the Securities by the Initial Purchasers and the issuance of Ordinary Shares upon conversion of the Securities, under the circumstances contemplated by the Purchase Agreement and the Final Memorandum;
(iv)) The execution and delivery of the Purchase Agreement, the Indenture and the Registration Rights Agreement, and the issuance and sale of the Securities, and the performance by the Company of their respective terms, including the issuance of the Ordinary Shares upon conversion of the Securities will not breach or result in a violation of (a) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument filed as a material contract by the Company under the Securities Exchange Act of 1934 to which the Company or its subsidiaries is a party or bound or to which their respective property is subject, or (c) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their respective properties, except where such breach, violation or imposition would not individually or in the aggregate have a Material Adverse Effect;
(v)) No consent, approval or authorization of, or designation, declaration or filing with, any governmental authority in the United States is required in connection with the valid execution, delivery and performance by the Company of the Purchase Agreement, the Indenture or the Registration Rights Agreement or the issuance and sale of the Securities, other than (a) as may be required under the blue sky or securities laws of any jurisdiction in which the Securities are offered or sold, and (b) such consents, approvals, authorizations, designations, declarations or filings as have been made or obtained on or before the date hereof;
(vi) Except as set forth in the Final Memorandum, there is, to our current actual knowledge, no action, suit or proceeding pending against the Company, its subsidiaries or their respective properties in any court or before any governmental authority or agency, or arbitration board or tribunal which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(vii)) The statements set forth under the headings “Description of Notes” and “Description of the Ordinary Shares” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indenture, the Ordinary Shares and the Registration Rights Agreement, provide a fair summary of such provisions;
(viii)) The Company is not and, after giving effect to the statement with respect offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum, will not be, required to "Certain U.S. Federal Income Tax Considerations" register as an “investment company” as defined in (xi) and (xiii) the Investment Company Act of Section 6(a) above. 1940, as amended, without taking account of any exemption arising out of the number of holders of the Company’s securities; In rendering such opinionsopinion, such counsel may rely as to matters of fact, to the extent they deem proper proper, on certificates of responsible officers of the Company and public officials, and as to matters relating . References to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and Final Memorandum in this Section 6(b) aboveinclude any amendment or supplement thereto at the Closing Date. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and advise the Initial Purchasers at which conferences to the contents effect that, in connection with such counsel’s participation in the preparation of the Final Memorandum were discussed Memorandum, while it has not independently verified the accuracy, completeness or fairness of the statements contained therein (except with respect to the matters opined upon in paragraph (vii) above), and subject to the fact that although they the limitations inherent in the examination made by, and the knowledge available to, such counsel are such that it is unable to assume, and does not passing upon and do not assume assume, any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as with respect to the matters referred to opined upon in their opinion described in clauses paragraph (viiivii) and (xi) referred to above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel its examination and other representatives participation in conferences with certain officers of the Company), its independent public accountants and Representatives of the Initial Purchasers in connection with the preparation of the Final Memorandum, it can advise the Initial Purchasers supplementally, as of the date thereof or the date of such opinion, that it has no facts came to their attention which lead them to believe current actual knowledge that the Final Memorandum, as of its datethe date thereof or the date of such opinion, or (as amended or supplemented) as of the Closing Date, contained an contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except in each case misleading. However, such counsel need not express any belief as to the financial statements and the notes thereto or the schedules or other financial and financial, statistical or reserve data contained therein in the Final Memorandum or incorporated by reference therein, with respect to which they need make no comment)omitted therefrom.
(dc) The Initial Purchasers Company shall have received from Sidley ▇▇▇▇▇▇ requested and caused Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ LLP▇, L.L.P., counsel for the Initial PurchasersCompany, such opinion or opinionsto furnish to the Representative its opinion, dated the Closing Date and addressed to the Initial PurchasersRepresentative, with respect to the issuance and sale of effect that:
(i) The Indenture, the Securities, this Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company under New York law;
(ii) The Indenture is a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as the enforceability thereof may be subject to or limited by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors, and (b) general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law;
(iii) The Securities are legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture, will be convertible into Ordinary Shares in accordance with their terms and enforceable against the Registration Rights AgreementCompany in accordance with their terms, except as the enforceability thereof may be subject to or limited by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors, and (b) general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law;
(iv) The statements in the Final Memorandum under the heading “Certain Tax Considerations” fairly summarize the matters therein described.
(as amended or supplemented at the Closing Dated) and other related matters as the Initial Purchasers may reasonably require, and the The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. Sidley requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing ▇▇, Bolivian counsel for the Company.
(e) The Company shall have furnished , to furnish to the Initial Purchasers a certificate of the Company, signed by two of Representative its executive officers (one of whom shall be a principal financial or accounting officer of the Company)opinion, dated the Closing DateDate and addressed to the Representative, 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) Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. is a corporation (sociedad anonima) existing under the representations and warranties laws of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; andBolivia;
(ii) since Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. has all necessary power and authority to own property and carry on its business;
(iii) Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇. is the date registered and beneficial owner of the most recent financial statements included mining concessions listed on a schedule attached thereto, free and clear of all encumbrances in favor of, and any rights and interests of, any other person;
(iv) The authorized capital and the Final Memorandum (exclusive issued and outstanding common shares of any amendment or supplement thereto)Minera San ▇▇▇▇▇▇▇▇▇ ▇.▇., there has been no material adverse change in as well as the condition (financial or otherwise), prospects, earnings, business or properties registered holders of the Company and its subsidiariesissued common shares, taken are as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations of follows: Outstanding Shares: 4,160,610 ASC Bolivia L.D.C. Sucursal Bolivia: Shares Held 4,160,608 Oscar ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the Execution Time and at the Closing Date, the Company shall have requested and caused ▇: 1 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to Achabal: 1
(v) ASC Bolivia L.D.C. Sucursal Bolivia is a 100% owned branch of ASC Bolivia L.D.C. a limited duration company organized and existing under the Initial Purchasers letters, dated respectively as laws of the Execution Time Cayman Islands, duly registered under the laws of Bolivia.
(vi) ASC Bolivia L.D.C. Sucursal Bolivia has all necessary power and as authority to own property and carry on its business.
(vii) ASC Bolivia L.D.C. Sucursal Bolivia is the Registered and beneficial owner of the Closing Datemining concessions listed on a schedule attached thereto, free and clear of all encumbrances in form and substance satisfactory to the Initial Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunderfavor of, and that:any rights and interests of, any other person and has the right to exploit such mining concessions.
(ie) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees thereof committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term liabilities of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Report, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; or
(2) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the FinThe Represent
Appears in 1 contract
Conditions to the Obligations of the Initial Purchasers. The ------------------------------------------------------- obligations ---------------------------------------------------------- of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time Time") and the Closing Date, -------------- to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Initial Purchasers shall have received from the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.Senior Vice President, Vice President General Counsel and Corporate Secretary of the Company, and from other counsel (which may be Company counsel) acceptable to the Initial Purchasers, one or more legal opinions, dated the Closing Date and addressed to the Initial PurchasersDate, to the cumulative effect that:
(i) each of the Company and CableTel UK Group, Inc. and any other subsidiary of the Principal Subsidiary Company which is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and is incorporated under the laws of the State of Delaware (for purposes of this Section 6(a) only, individually, a "Subsidiary" and ---------- collectively, the "Subsidiaries") has been duly incorporated and is ------------ validly existing as a corporation and is in good standing under the laws of the State of Kansas, Delaware with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final 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 and where the failure so to be so qualified qualify would be materially have a material adverse to effect on the Company and its subsidiaries considered taken as a whole;
(ii) all the outstanding shares of capital stock of each of the Company Subsidiary have been duly and the Principal Subsidiary possesses valid validly authorized and subsisting franchisesissued and are fully paid and nonassessable, certificates of convenience and authorityand, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject to the expiration of the Principal Subsidiary's franchise agreement with the City of Wichita, in each case except as described otherwise set forth in the Final Offering Memorandum, all of the outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth in the Final Offering Memorandum;
(iv) the Sterling Senior Notes Indenture has been duly authorized, executed and delivereddelivered by the Company and, assuming the due authorization, execution and delivery thereof by the Sterling Senior Notes Trustee, constitutes a legal, valid and legally binding instrument obligation of the Company enforceable against the Company in accordance with its terms subject terms, except to the Enforceability Limitationsextent that (i) enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditor's rights generally and (2) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (ii) the waiver contained in Section 4.04 of the Sterling Senior Notes Indenture may be deemed unenforceable;
(ivv) the Securities Sterling Deferred Coupon Notes Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Sterling Deferred Coupon Notes Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that (i) enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditor's rights generally and (2) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (ii) the waiver contained in Section 4.04 of the Sterling Deferred Coupon Notes Indenture may be deemed unenforceable;
(vi) the USD Deferred Coupon Notes Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the USD Deferred Coupon Notes Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that (i) enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditor's rights generally and (2) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (ii) the waiver contained in Section 4.04 of the USD Deferred Coupon Notes Indenture may be deemed unenforceable;
(vii) each of the Registration Rights Agreements has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Initial Purchasers, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (iii) the enforceability of indemnification and contribution provisions may be limited by Federal and state securities laws or the public policy underlying such laws;
(viii) the Sterling Senior Notes have been duly and validly authorized and executed by the Company and, when executed and duly authenticated in accordance with the provisions terms of the Sterling Senior Notes Indenture and delivered to and paid for by the Initial Purchasers under as contemplated by this AgreementAgreement (assuming the due authorization, execution and delivery of the Sterling Senior Notes Indenture by the Sterling Senior Notes Trustee), will constitute legal, valid, valid and legally binding and enforceable obligations of the Company Company, entitled to the benefits of the Sterling Senior Notes Indenture subject and enforceable against the Company in accordance with their terms, except to the Enforceability Limitationsextent that (1) enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (y) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (2) the waiver contained in Section 4.04 of the Sterling Senior Notes Indenture may be deemed unenforceable;
(vix) the Registration Rights Agreement has Sterling Deferred Coupon Notes have been duly authorizedand validly authorized and executed by the Company and, executed when duly authenticated in accordance with the terms of the Sterling Deferred Coupon Notes Indenture and delivered to and constitutes paid for by the legalInitial Purchasers as contemplated by this Agreement (assuming the due authorization, valid, binding and enforceable instrument of the Company subject to the Enforceability Limitations;
(vi) neither the execution and delivery of the IndentureSterling Deferred Coupon Notes Indenture by the Sterling Deferred Coupon Notes Trustee), the Registration Rights Agreement, the Securities or this Agreement, nor the consummation will constitute valid and legally binding obligations of the transactions therein contemplatedCompany, nor compliance entitled to the benefits of the Sterling Deferred Coupon Notes Indenture and enforceable against the Company in accordance with their terms, except to the extent that (1) enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (y) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (2) the waiver contained in Section 4.04 of the Sterling Deferred Coupon Notes Indenture may be deemed unenforceable;
(x) the USD Deferred Coupon Notes have been duly and validly authorized and executed by the Company and, when duly authenticated in accordance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder;
(vii) this Agreement has been duly authorized, executed USD Deferred Coupon Notes Indenture and delivered to and paid for by the Company;
(viii) the Securities, the Indenture and the Registration Rights Agreement conform as to legal matters in all material respects with the statements concerning them set forth in the Final Memorandum under the captions "Description of Notes" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions;
(ix) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale of the Securities and the transactions related thereto Initial Purchasers as contemplated by this Agreement and (assuming the Registration Rights Agreement, and no additional consent, approval, due authorization, filing with or order execution and delivery of 152 the FERCUSD Deferred Coupon Notes Indenture by the USD Deferred Coupon Notes Trustee), will constitute valid and legally binding obligations of the KCC or any court or governmental agency or body is required in connection with Company, entitled to the transactions contemplated herein or in benefits of the USD Deferred Coupon Notes Indenture and enforceable against the Registration Rights AgreementCompany in accordance with their terms, except to the extent that (i1) such as enforcement thereof may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities limited by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained;
(x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to the knowledge or affecting creditors' rights generally and (y) general principles of such counsel, there equity (regardless of whether enforcement 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 the Principal Subsidiary 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, result considered in a material adverse change proceeding in equity or at law) and (2) the condition (final or otherwise), prospects, earnings, business or properties waiver contained in Section 4.04 of the Company and its Restricted Subsidiaries, taken as a wholeUSD Deferred Coupon Notes Indenture may be deemed unenforceable;
(xi) the statements in the Final Memorandum set forth under the heading "Description of Notes," "Description of Certain U.S. Federal Income Tax ConsiderationsIndebtedness" and the statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal ProceedingsRegistration Rights" fairly summarize the matters therein described;
(xii) no facts have come to such counsel's attention that lead him to believe that the Final Memorandum at the Execution Time and 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 therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(xiii) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and
(xiv) the documents of the Company incorporated by reference in the Final Offering Memorandum, insofar as they purport to constitute a summary of documents referred to therein (and assuming that the respective dates on which they were filed with documents referred to therein are governed by the Commission pursuant to the Exchange Act, complied as to form law of New York or Delaware) fairly present such documents in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission under the Exchange Act. In rendering such opinion, 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(a) include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused Morris, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) unless the issue and sale of the Securities pursuant to this Agreement violates an existing valid order of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification of or with the KCC is required for the issue and sale of the Securities by the Company pursuant to this Agreementrespects;
(ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and
(iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities.
(c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Company, a legal opinion dated the Closing Date and addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, covering the matters referred to in clauses (iii), (iv), (v), (vii), (viii), the statement with respect to "Certain U.S. Federal Income Tax Considerations" in (xi) and (xiii) of Section 6(a) above. In rendering such opinions, 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, and as to matters relating to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and 6(b) above. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Initial Purchasers at which conferences the contents of the Final Memorandum were discussed and that although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as to matters referred to in their opinion described in clauses (viii) and (xi) referred to above, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts came to their attention which lead them to believe that the Final Memorandum, as of its date, or (as amended or supplemented) as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except in each case as to the financial statements and other financial and statistical data contained therein or incorporated by reference therein, with respect to which they need make no comment).
(d) The Initial Purchasers shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) 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. Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing counsel for the Company.
(e) The Company shall have furnished to the Initial Purchasers a certificate of the Company, signed by two of its executive officers (one of whom shall be a 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 representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the 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 Final Memorandum (exclusive of any amendment or supplement thereto).
(f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the Execution Time and at the Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Initial Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, and that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees thereof committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term liabilities of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Report, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; or
(2) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Fin
Appears in 1 contract
Sources: Purchase Agreement (NTL Inc /De/)
Conditions to the Obligations of the Initial Purchasers. The obligations ---------------------------------------------------------- ------------------------------------------------------- of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received from ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice President and Corporate Secretary of the Company, and from other counsel (which may be Company counsel) acceptable to the Initial Purchasers, one or more legal opinions, dated the Closing Date and addressed to the Initial Purchasers, Purchasers to the cumulative effect that:
(i) each of the Company and the Principal Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and where the failure to be so qualified would be materially adverse to the Company and its subsidiaries considered as a whole;
(ii) each of the Company and the Principal Subsidiary possesses valid and subsisting franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, subject to the expiration of the Principal Subsidiary's franchise agreement with the City of Wichita, in each case as described in the Final Memorandum;
(iii) the Indenture Amended Mortgage has been duly authorized, and validly authorized by all necessary corporate action and has been duly executed and delivered, and has been qualified under the Trust Indenture Act of 158 1939, as amended, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms subject to the Enforceability Limitations;
(iv) the Amended Mortgage and all required financing statements under the Uniform Commercial Code have been duly recorded or filed in each place in which any of the properties or assets of the Company subject to the lien of the Amended Mortgage are situated and in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(v) the Securities have been duly and validly authorized andauthorized, when executed and authenticated in accordance with the provisions of the Indenture executed, issued and delivered to and paid for by the Initial Purchasers under this Agreement, will Company and constitute legal, valid, valid and legally binding and enforceable obligations of the Company entitled to the lien of and benefits of provided by the Indenture Amended Mortgage subject to the Enforceability Limitations;
(vvi) the Registration Rights Agreement has been duly authorized, executed and delivered and constitutes the legal, valid, binding and enforceable instrument of the Company subject to the Enforceability Limitations;
(vivii) neither the execution and delivery of the IndentureAmended Mortgage, the Registration Rights Agreement, the Securities or this Agreement, nor the consummation of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will conflict with, violate or result in a breach of any law, any administrative regulation or any court decree known to such counsel to be applicable to the Company or the Principal Subsidiary, conflict with or result in a breach of any of the terms, conditions or provisions of the charter or by-laws of the Company or the Principal Subsidiary or of any agreement or instrument known to such counsel to which the Company or the Principal Subsidiary is a party or by which the Company or the Principal Subsidiary is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any properties or assets of the Company or the Principal Subsidiary other than the lien of the Amended Mortgage;
(viiviii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiiix) the Securities, the Indenture Securities and the Registration Rights Agreement Amended Mortgage conform as to legal matters in all material respects with the statements concerning them set forth in the Final Memorandum under the captions "Description of NotesBonds" and "Exchange Offers; Registration Rights," insofar as such statements purport to summarize certain provisions;
(ixx) an appropriate order has been entered by the FERC in Federal Power Act dockets ES00-39-000 and ES00-39-001 authorizing the issuance and sale of the Securities and the transactions related thereto as contemplated by this Agreement and the Registration Rights Agreement, and no additional consent, approval, authorization, filing with or order of 152 the FERC, the KCC or any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture Amended Mortgage and the Registration Rights Agreement, except (i) such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Initial Purchasers in the manner contemplated in this Agreement and the Final Memorandum and the Registration Rights Agreement; (ii) the filing with the FERC of the reports required by 18 CFR Section 34.10; and (iii) the filing with the KCC of a copy of the registration statement contemplated by the Registration Rights Agreement and such other approvals (specified in such opinion) as have been obtained;
(xxi) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgements not prior to the lien of the Amended Mortgage, which, in such counsel's opinion, do not interfere with the Company's business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel's opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject only as above set forth in this paragraph, the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) hereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject however to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Final Memorandum; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(xii) 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 the Principal Subsidiary 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, result in a material adverse change in the condition (final or otherwise), prospects, earnings, business or properties of the Company and its Restricted Subsidiaries, taken as a whole;
(xixiii) the statements in the Final Memorandum under the heading "Certain U.S. Federal Income Tax Considerations" and the statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 (the "Annual Report") under the heading "Legal Proceedings" fairly summarize the matters therein described;
(xiixiv) no facts have come to such counsel's attention that lead him to believe that the Final Memorandum at the Execution Time and 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 therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the statistical information, financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(xiiixv) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Act, and no qualification of an indenture under the Trust Indenture Act, are required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement; and
(xivxvi) the documents of the Company incorporated by reference in the Final Memorandum, as of the respective dates on which they were filed with the Commission pursuant to the Exchange Act, complied as to form in all material respects with the Exchange Act and the applicable published rules and regulations of the Commission under the Exchange Act. In rendering such opinion, 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(a) include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused Morris, Laing, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chartered, special counsel for the Company, to furnish to the Initial Purchasers its opinion, dated the Closing Date, addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) unless the issue and sale of the Securities pursuant to this Agreement violates an existing valid order of the KCC, no consent, approval, authorization, order, registration, waiver, exemption or qualification of or with the KCC is required for the issue and sale of the Securities by the Company pursuant to this Agreement;
(ii) the issue and sale of the Securities should not be interpreted by the KCC to violate the July 20, 2001 Order of the KCC; and
(iii) if the KCC were to determine that the issue and sale of the Securities violates the July 20, 2001 Order, (i) any such violation should not affect the validity of the Securities; (ii) any such violation should not impair the legal enforceability of such Securities; and (iii) the Company should not be prevented from making timely payments of interest, premium, if any, and principal pursuant to the terms of the Securities, or otherwise complying with the terms of the Securities.
(c) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Company, a legal opinion dated the Closing Date and addressed to the Initial Purchasers and in form reasonably satisfactory to the Initial Purchasers, covering the matters referred to in clauses (iii), (iv), (v), (viivi), (viii), (ix), the statement with respect to "Certain U.S. Federal Income Tax Considerations" in (xixiii) and (xiiixv) of Section 6(a) above. In rendering such opinions, 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, and as to matters relating to the FERC authorization and Kansas law (including matters relating to the KCC), upon the opinions rendered pursuant to Sections 6(a) 172 and 6(b) above. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Initial Purchasers at which conferences the contents of the Final Memorandum were discussed and that although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as to matters referred to in their opinion described in clauses (viiiix) and (xixiii) referred to above, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts came to their attention which lead them to believe that the Final Memorandum, as of its date, or (as amended or supplemented) as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except in each case as to the financial statements and other financial and statistical data contained therein or incorporated by reference therein, with respect to which they need make no comment).
(d) The Initial Purchasers shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 IndentureAmended Mortgage, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) 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. Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of one or more of the foregoing counsel for the Company.
(e) The Company shall have furnished to the Initial Purchasers a certificate of the Company, signed by two of its executive officers (one of whom shall be a 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 representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the 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 Final Memorandum (exclusive of any amendment or supplement thereto).
(f) Subject to such modifications as the Initial Purchasers may, in their discretion, deem acceptable to accommodate the current uncertainty relating to the ongoing operations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the Execution Time and at the Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to furnish to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Initial Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, and that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Final Memorandum and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees thereof committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2001 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term liabilities of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2001 consolidated balance sheet included in the Annual Report, or for the period from January 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter (including decreases as a result of the impairment charge in the first quarter of 2002 of approximately $657 million), in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Initial Purchasers; or
(2) the information included under the headings "Selected Financial Data" in the Annual Report is not in conformity with the disclosure requirements of Regulation S-K; or
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Fininclu
Appears in 1 contract