Conditions to the Obligations of the Purchasers. The obligations ----------------------------------------------- of the Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Company shall have furnished to the Purchasers the opinion of counsel for the Company, dated the Closing Date, substantially in the form of Exhibit C. (b) The Company shall have furnished to the Purchasers the opinion of ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, special counsel to the Company on regulatory matters, dated the Closing Date, to the effect that: (i) the statements in or incorporated by reference in the Final Memorandum under the headings "Risk Factors - Wireline Competition," "Risk Factors -Wireless Competition," "Risk Factors - PCS System Implementation Risks," "Risk Factors- Relocation of Fixed Microwave Licensees," "Risk Factors - Regulation," "Business - Business Strategy," "Business - Market Potential," "Business -Expansion of Certain Facilities-based Services," "Business - Wireless Services," "Business - Competition" and "Business - Regulation" fairly and accurately summarize the laws, case law, rules, regulations and orders of the Federal Communications Commission ("FCC") and the comparable state regulatory agencies or bodies with direct regulatory jurisdiction over telecommunications matters in the states in which the Company and any of the Subsidiaries provide intrastate services (the "State Regulatory Agencies") except for such changes with respect to such laws, case law, rules, regulations and orders which could not have a material adverse effect on the Company and, to the best knowledge of such counsel, the statements in or incorporated by reference in the Final Memorandum under the headings "Risk Factors - Dependence on Regional ▇▇▇▇ Operating Companies; US West Centrex Action," "Risk Factors - Refusal of US West to Improve its Processing of Service Orders," "Business- Current Products and Services" and "Business - Legal Proceedings" fairly and accurately summarize the legal proceedings set forth therein with respect to the US West Centrex Action (as defined in or incorporated by reference in the Final Memorandum) and the action against US West Communications, Inc. concerning the processing of orders except for such changes with respect to such legal proceedings and action which could not have a material adverse effect on the Company;
Appears in 1 contract
Sources: Purchase Agreement (McLeodusa Inc)
Conditions to the Obligations of the Purchasers. The obligations ----------------------------------------------- of the Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Purchasers the opinion of counsel for the Company, dated the Closing Date, substantially in the form of Exhibit C.
(b) The Company shall have furnished to the Purchasers the opinion of ▇▇▇▇▇▇▇ Berlin Shereff & ▇▇▇▇▇▇▇▇, LLP, special counsel to for the Company on regulatory mattersCompany, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own and lease its properties and conduct its business as described in the Final Memorandum and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, and in which the failure to be so qualified or to be in good standing would, in the aggregate in all such cases, have a Material Adverse Effect;
(ii) the Company's authorized equity capitalization is as set forth in the Final Memorandum; the Securities and the Common Stock conform to the description thereof contained in the Final Memorandum in all material respects; the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or, to such counsel's knowledge, any other similar rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable;
(iii) to the best knowledge of such counsel, except as described in the Final Memorandum, there are no outstanding rights, warrants, or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or equity interest in the Company or its subsidiaries;
(iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries that would have a Material Adverse Effect on the Company that is not adequately disclosed in the Final Memorandum, and there is no material franchise, contract or other material document which would be required to be disclosed in a Registration Statement on Form S-1 filed under the Act and which is not described in the Final Memorandum; the descriptions in the Final Memorandum of statutes, regulations, contracts, franchises or other documents, pending or threatened actions, suits or proceedings before any court or arbitrator, or brought by any governmental agency, authority or body fairly present the information shown;
(v) the Indenture has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Trustee, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and general principles of equity, whether enforcement is considered in a proceeding in equity or at law and the discretion of the court before which any proceeding therefor may be brought); and the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Purchasers pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; and the statements set forth under the "Description of the Notes" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities and the Indenture, provide a fair summary of such provisions;
(vi) the Company has the corporate power and authority to enter into this Agreement, the Registration Agreement and the Share Purchase Agreement; this Agreement, the Registration Agreement and the Share Purchase Agreement have been duly authorized, executed and delivered by the Company;
(vii) provided that the Securities are offered and sold in the manner contemplated by the Purchase Agreement and the Final Memorandum, and assuming compliance by the Company and the Purchasers with their respective representations, warranties and agreements with respect thereto as set forth in the Purchase Agreement and the compliance by the Shareholder parties thereto with their representations, warranties and covenants set forth in the Share Purchase Agreement, no consent, approval, authorization or order of any court or governmental agency or body is required for the performance by the Company of its obligations hereunder or under the Share Purchase Agreement, except (i) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Purchasers (as to which such counsel need express no opinion), (ii) as contemplated by the Registration Agreement and the separate Registration Agreement attached as Exhibit D to the Share Purchase Agreement and (iii) such other approvals (specified in such opinion) as have been obtained;
(viii) provided that the Securities are offered and sold in the manner contemplated by the Purchase Agreement and the Final Memorandum, and assuming compliance by the Company and the Purchasers with their respective representations, warranties and agreements with respect thereto as set forth in the Purchase Agreement and the compliance by the Shareholder parties thereto with their representations, warranties and covenants set forth in the Share Purchase Agreement, neither the issue and sale of the Securities, the execution and delivery of the Indenture, the performance by the Company of its obligations under this Agreement, the Share Purchase Agreement, the Indenture, the Registration Agreement or the Notes, nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law (except Blue Sky laws, as to which such counsel expresses no opinion) or the articles of incorporation or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it is bound or any judgment, order or decree known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; provided, however, that such counsel need express no opinion as to whether any such conflict, breach, violation or default will result under any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of the Company;
(ix) provided that the Securities are offered and sold in the manner contemplated by the Purchase Agreement and the Final Memorandum, and assuming compliance by the Company and the Purchasers with their respective representations, warranties and agreements with respect thereto as set forth in the Purchase Agreement, it is not necessary in connection with the offer, sale and delivery by the Company of the Securities in the manner contemplated by this Agreement to register the Securities under the Act or to qualify the Indenture under the Trust Indenture Act; and In addition, such counsel shall state that, in the course of preparation by the Company of the Final Memorandum, such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Purchasers and representatives of counsel for the Purchasers, at which conferences such counsel made inquiries of such officers, representatives and accountants and discussed the contents of the Final Memorandum and related matters and (without taking any further action to verify independently the statements made in the Final Memorandum and, except solely as expressly stated in the foregoing opinion, without assuming responsibility for the accuracy, completeness or fairness of such statements) nothing has come to the attention of such counsel which would lead such counsel to believe that as of the date thereof or on the Closing Date, the Final Memorandum contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any statement with respect to the financial statements, schedules and other financial information included in the Final Memorandum). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the 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 paragraph (a) include any amendments or supplements thereof or thereto at the Closing Date.
(b) The Purchasers shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Final Memorandum (together with any amendment or supplement thereof or thereto) and other related matters as the 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.
(c) The Company shall have furnished to the Purchasers a certificate of the Company, signed on behalf of the Company by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied pursuant to this agreement at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements incorporated by reference in the Final Memorandum, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum.
(d) At the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Purchasers a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Purchasers, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Final Memorandum under and reported on by them comply in form in all material respects with the headings "Risk Factors - Wireline Competition," "Risk Factors -Wireless Competition," "Risk Factors - PCS System Implementation Risks," "Risk Factors- Relocation of Fixed Microwave Licensees," "Risk Factors - Regulation," "Business - Business Strategy," "Business - Market Potential," "Business -Expansion of Certain Facilities-based Services," "Business - Wireless Services," "Business - Competition" and "Business - Regulation" fairly and accurately summarize the laws, case law, rules, regulations and orders applicable accounting requirements of the Federal Communications Commission ("FCC") Act and the comparable state regulatory agencies or bodies published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in accordance with direct regulatory jurisdiction over telecommunications matters in generally accepted auditing standards) consisting of the states in which following:
(1) a reading of the minutes of the meetings of stockholders, directors and the Audit and Compensation Committees of the Company and any Electrotech and, where applicable, their subsidiaries;
(2) performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, on the unaudited interim financial statements of the Subsidiaries provide intrastate services (the "State Regulatory Agencies") except for such changes with respect to such laws, case law, rules, regulations Company and orders which could not have a material adverse effect on the Company and, to the best knowledge of such counsel, the statements in or incorporated by reference its consolidated subsidiaries included in the Final Memorandum under and reading the headings "Risk Factors - Dependence on Regional ▇▇▇▇ Operating Companiesunaudited interim financial data for the period from the date of the latest audited balance sheet included in the Final Memorandum to the date of the latest available interim financial data; US West Centrex Action," "Risk Factors - Refusal and
(3) inquiries of US West certain officials of the Company and Electrotech who have responsibility for financial and accounting matters of the Company and Electrotech regarding their subsidiaries as to Improve its Processing transactions and events subsequent to the December 31, 1995 and June 30, 1996 audited financial statements incorporated in the Final Memorandum, nothing came to their attention which caused them to believe that:
(1) the unaudited financial statements included in the Final Memorandum do not comply in form in all material respects with the applicable accounting requirements of Service Orders," "Business- Current Products the Act and Services" the related published rules and "Business - Legal Proceedings" fairly and accurately summarize regulations;
(2) any material modifications should be made to the legal proceedings set forth therein unaudited financial statements for them to be in conformity with generally accepted accounting principles; or
(3) with respect to the US West Centrex Action (period subsequent to June 30, 1996, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the Long- Term Debt or Capital Stock of the Company or Electrotech and their consolidated subsidiaries or decreases in the Shareholders' Equity of the Company or Electrotech as defined in or incorporated by reference compared with the amounts shown on the June 30, 1995 consolidated balance sheet of the Company and combined balance sheet of Electrotech included in the Final Memorandum) and Proxy Statement, or for the action against US West Communicationsperiod from July 1, Inc. concerning the processing of orders except for such changes with respect 1996 to such legal proceedings specified date there were any decreases, as compared with the corresponding period in the preceding year, in Revenue, or in total or per share amounts of Net Income (Loss) of the Company and action Electrotech and their consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which could case the letter shall be accompanied by an explanation by the Company or Electrotech as to the significance thereof unless said explanation is not have a material adverse effect deemed necessary by the Representatives; and
(iii) they are unable to and do not express any opinion on the pro forma capitalization or the "Pro Forma Information" included or incorporated in the Final Memorandum or on the pro forma adjustments applied to the historical amounts included in such statements (the "Pro Forma Information"); however, for purposes of such letter they have:
(1) read the Pro Forma Information;
(2) made inquiries of certain officials of the Company who have responsibility for financial and accounting matters about the basis for their determination of the pro forma adjustments and whether the Pro Forma Information above complies in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S- X;
(3) compared the historical amounts in the Pro Forma Information with the Company;'s or Electrotech's audited financial statemen
Appears in 1 contract
Sources: Purchase Agreement (Plasma & Materials Technologies Inc)
Conditions to the Obligations of the Purchasers. The obligations ----------------------------------------------- of the Purchasers to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantors contained herein as of the Execution Time and the Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by each of the Company Company, TW NY and TWE of its obligations hereunder hereunder, to the due execution and delivery of the Indenture, to the absence of any event or condition which would give you the right to terminate this Agreement and to the following additional conditions:
(a) The At the Closing Date, the Company shall have furnished to the Purchasers you the opinion of counsel for the General Counsel to the Company, or an Associate or Deputy General Counsel to the Company that practices in the area of corporate and securities law, dated the Closing Date, substantially in the form of Exhibit C.A hereto.
(b) At the Closing Date, the Company shall have furnished to you the opinion and statement of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, counsel to the Company and the Guarantors, each dated the Closing Date, substantially in the form of Exhibit B and Exhibit C hereto, respectively;
(c) At the Closing Date, the Representatives shall have received from Shearman & Sterling LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Offering Memorandum (together with any supplement thereto), any Company Free Writing Communications and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(1) The Company shall have furnished to the Purchasers Representatives a certificate of the opinion Company, signed by any two officers who are an Executive or Senior Vice President of ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, special counsel to the Company on regulatory mattersCompany, dated the Closing Date, to the effect that the signers of such certificate have examined the Disclosure Package, the Final Offering Memorandum and any supplements or amendments to any of the foregoing and this Agreement and that:
(i) the representations and warranties of the Company, TW NY and TWE in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and each of the Company, TW NY and TWE has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ii) since the date of the most recent financial statements in included or incorporated by reference in the Disclosure Package and the Final Offering Memorandum under (exclusive of any amendment or supplement thereto), the headings "Risk Factors - Wireline Competition," "Risk Factors -Wireless Competition," "Risk Factors - PCS System Implementation Risks," "Risk Factors- Relocation Company has made all filings with the Commission and announcements, in either case required to be made by the Act or the Exchange Act.
(2) TW NY shall have furnished to the Representatives a certificate of Fixed Microwave Licensees," "Risk Factors - Regulation," "Business - Business Strategy," "Business - Market Potential," "Business -Expansion TW NY, signed by any two officers who are Vice Presidents of Certain Facilities-based Services," "Business - Wireless Services," "Business - Competition" TW NY, dated the Closing Date, to the effect that the signers of such certificate have examined the Disclosure Package and "Business - Regulation" fairly the Final Offering Memorandum and accurately summarize any supplement or amendments thereto and that the laws, case law, rules, regulations representations and orders warranties of TW NY in this Agreement are true and correct in all material respects on and as of the Federal Communications Commission Closing Date with the same effect as if made on the Closing Date and TW NY has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
("FCC"3) TWE shall have furnished to the Representatives a certificate of TWE, signed by any two officers, one of whom is an Executive or Senior Vice President of TWE, dated the Closing Date, to the effect that the signers of such certificate have examined the Disclosure Package and the comparable state regulatory agencies Final Offering Memorandum and any supplement or bodies amendments thereto and that the representations and warranties of TWE in this Agreement are true and correct in all material respects on and as of the Closing Date with direct regulatory jurisdiction over telecommunications matters in the states in which same effect as if made on the Closing Date and TWE has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(e) The Representatives shall have received from (A) Ernst & Young LLP, independent registered public accounting firm for the Company and any (B) Deloitte & Touche LLP, independent registered public accounting firm for Comcast, at the Execution Time and at the Closing Date, letters, dated as of the Subsidiaries provide intrastate services Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (the "State Regulatory Agencies") except for such changes or any successor bulletin), with respect to such lawsthe audited, case lawunaudited, rulespro forma and special purpose carve-out financial statements, regulations as applicable, and orders which could not have a material adverse effect on the Company and, to the best knowledge of such counsel, the statements in certain financial information contained or incorporated by reference in the Disclosure Package and the Final Memorandum under Offering Memorandum; and (ii) the headings "Risk Factors - Dependence on Regional ▇▇▇▇ Operating Companies; US West Centrex Action," "Risk Factors - Refusal Purchasers shall have received from PricewaterhouseCoopers LLP, independent registered public accounting firm for Adelphia, at the Execution Time and at the Closing Date, letters, dated as of US West the Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to Improve its Processing the Representatives, containing statements and information of Service Orders," "Business- Current Products and Services" and "Business - Legal Proceedings" fairly and accurately summarize the legal proceedings set forth therein type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the US West Centrex Action (as defined in audited and unaudited financial statements of Adelphia contained or incorporated by reference in the Final Memorandum) Disclosure Package and the action against US West CommunicationsFinal Offering Memorandum.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any decrease or increase specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the business (including the results of operations or management) or properties of the Company and its subsidiaries taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of any series of Securities as contemplated by the Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, (i) there shall not have been any downgrade in the credit ratings of any of the Company’s, TW NY’s or TWE’s debt securities by M▇▇▇▇’▇ Investor Service, Inc. concerning or Standard & Poor’s Ratings Group, and (ii) none of the processing Company, TW NY or TWE shall have been placed under special surveillance, with negative implications, by M▇▇▇▇’▇ Investor Service, Inc. or Standard & Poor’s Ratings Group.
(h) At the Closing Date, the Company and the Guarantors shall have executed and delivered the Registration Rights Agreement.
(i) At the Closing Date, the Company, the Guarantors and the Trustee shall have executed and delivered the Indenture.
(j) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of orders except for such changes with respect to such legal proceedings and action which could the conditions specified in this Section 6 shall not have a been fulfilled in all material adverse effect on respects when and as provided in this Agreement, or if any of the Company;opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Purchasers, this Agreement and all obligations of the Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives and such cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 5 and 7. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligations ----------------------------------------------- of the Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Purchasers the opinion of counsel for the Company, dated the Closing Date, substantially in the form of Exhibit C.
(b) The Company shall have furnished to the Purchasers the opinion of ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, special counsel to the Company on regulatory matters, dated the Closing Date, to the effect that:
(i) the statements in or incorporated by reference in the Final Memorandum under the headings "Risk Factors - Wireline Competition," "Risk Factors -Wireless Competition," "Risk Factors - PCS System Implementation Risks," "Risk Factors- Relocation of Fixed Microwave Licensees," "Risk Factors - Regulation," "Business - Business Strategy," "Business - Market Potential," "Business -Expansion - Expansion of Certain Facilities-based Services," "Business - Wireless Services," "Business - Competition" and "Business - Regulation" fairly and accurately summarize the laws, case law, rules, regulations and orders of the Federal Communications Commission ("FCC") and the comparable state regulatory agencies or bodies with direct regulatory jurisdiction over telecommunications matters in the states in which the Company and any of the Subsidiaries provide intrastate services (the "State Regulatory Agencies") except for such changes with respect to such laws, case law, rules, regulations and orders which could not have a material adverse effect on the Company and, to the best knowledge of such counsel, the statements in or incorporated by reference in the Final Memorandum under the headings "Risk Factors - Dependence on Regional ▇▇▇▇ Operating Companies; US West Centrex Action," "Risk Factors - Refusal of US West to Improve its Processing of Service OrdersWEST Centrex Action and Other Actions by US WEST," "Business- Business - Current Products and Services" and "Business - Legal Proceedings" fairly and accurately summarize the legal proceedings set forth therein with respect to the US West WEST Centrex Action (as defined in or incorporated by reference in the Final Memorandum) and the action against US West WEST Communications, Inc. concerning the processing of orders except for such changes with respect to such legal proceedings and action which could not have a material adverse effect on the Company;
Appears in 1 contract
Sources: Purchase Agreement (McLeodusa Inc)
Conditions to the Obligations of the Purchasers. The obligations of ----------------------------------------------- of the Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Purchasers the opinion opinions of counsel for the Company, dated the Closing Date, substantially in the form forms of Exhibit C.D and Exhibit E.
(b) The Company shall have furnished to the Purchasers the opinion of ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP& Berlin, special counsel to the Company on regulatory matters, dated the Closing Date, to the effect that:
(i) the statements in or incorporated by reference in the Final Memorandum under the headings "Risk Factors Summary - Wireline CompetitionBusiness Strategy," "Risk Factors -Wireless - Wireline Competition," "Risk Factors - PCS System Implementation Risks," "Risk Factors- Relocation of Fixed Microwave Licensees," "Risk Factors - Regulation," "Business - Business Strategy," "Business - Market Potential," "Business -Expansion of Certain Facilities-based Services," "Business - Business- Wireless Services," "Business - Competition" and "Business - Regulation-Regulation" fairly and accurately summarize the laws, case law, rules, regulations and orders of the Federal Communications Commission ("FCC") and the comparable state regulatory agencies or bodies with direct regulatory jurisdiction over telecommunications matters in the states in which the Company and any of the Subsidiaries provide intrastate services (the "State Regulatory Agencies") except for such changes with respect to such laws, case law, rules, regulations and orders which could not have a material adverse effect on the Company and, to the best knowledge of such counsel, the statements in or incorporated by reference in the Final Memorandum under the headings "Risk Factors - Dependence on Regional ▇▇▇▇ Operating Companies; US West Centrex Action," "Risk Factors - Refusal of US West to Improve its Processing Process of Service Orders," "Business- Business-Current Products and Services" and "Business - Legal Proceedings" fairly and accurately summarize the legal proceedings set forth therein with respect to the US West Centrex Action (as defined in or incorporated by reference in the Final Memorandum) and the action against US West Communications, Inc. concerning the processing of orders except for such changes with respect to such legal proceedings and action which could not have a material adverse effect on the Companyorders;
Appears in 1 contract
Sources: Purchase Agreement (McLeod Inc)
Conditions to the Obligations of the Purchasers. The obligations ----------------------------------------------- ------------------------------------------------ of the Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and Holding contained herein as of 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 or Holding made in any certificates pursuant to the provisions hereof, to the performance by the Company and Holding of its their respective obligations hereunder and to the following additional conditions:
(a) The Company and Holding shall have furnished to the Purchasers the opinion of counsel for the Company, dated the Closing Date, substantially in the form of Exhibit C.
(b) The Company shall have furnished to the Purchasers the opinion of caused ▇▇▇▇▇▇▇ Berlin Shereff & ▇▇▇▇▇▇▇▇, LLPcounsel for the Company and Holding, special counsel to have furnished to the Company on regulatory matters, Purchasers their opinion dated the Closing DateDate and addressed to the Purchasers, to the effect that:
(i) Holding and the Company have been duly incorporated and are validly existing as corporations in good standing under the laws of the State of Delaware and California, respectively, with full corporate power and authority to own or lease, as the case may be, their properties and conduct their business as described in the Final Memorandum;
(ii) the authorized equity capitalization of Holding and of the Company effective upon the consummation of the Recapitalization is as set forth in the Final Memorandum;
(iii) the information contained in the Final Memorandum under the headings "Description of Senior Credit Facility" and "Certain Federal Income Tax Considerations", fairly summarizes the matters therein described in all material respects and the information contained in the Final Memorandum under the heading "Risk Factors --- Fraudulent Conveyance and Distribution Limitation Considerations" relating to Sections 500 et seq. of the California Corporations Code fairly summarizes the possible consequences of the violation of these sections to holders of Securities;
(iv) the Indenture and the Exchange Indenture conform as to form in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder;
(v) provided the Securities are sold in the manner contemplated by the Purchase Agreement and Final Memorandum, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Indenture, the Exchange Indenture, the Registration Agreement and the Securities or for the consummation of the Transactions contemplated thereby, except such as may be required under the blue sky or securities laws of any jurisdiction and such other approvals (specified in such opinion) as have been obtained and except such as may be required under the Securities Act and the Trust Indenture Act with respect to the Registration Agreement and the transactions contemplated thereunder;
(vi) except as set forth in the Final Memorandum, none of the issue and sale of the Securities, the execution and delivery of this Agreement, the Registration Agreement, the Merger Agreement, the New Credit Facility, the Indenture, or the Exchange Indenture, the fulfillment of the terms hereof or thereof or the consummation of the transactions contemplated thereby will conflict with, result in a breach or violation of, or constitute a default under any law (other than California Corporations Code (S)(S) 500 et seq. as to which such counsel may express no opinion) or the charter or by-laws of Holding or the Company or the terms of any material indenture or other material agreement or instrument identified in an officer's certificate as material to the Company and to which Holding or the Company or the Subsidiary is a party or bound or any judgment, order or decree, identified in an officer's certificate, of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over Holding or the Company;
(vii) Holding and the Company have full corporate right, power and authority to execute and deliver the Securities, the Registration Agreement, the Merger Agreement, the New Credit Facility, the Indenture, the Exchange Indenture and this Agreement and to perform their respective obligations thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of the Indenture, the Exchange Indenture, the Merger Agreement, the New Credit Facility, the Securities, the Registration Agreement and this Agreement and for the consummation of the transactions contemplated thereby has been duly and validly taken;
(viii) the Merger Agreement has been duly authorized, executed and delivered by Holding, the Company and River Acquisition Corp., and constitutes a legal, valid and binding instrument enforceable against Holding, the Company and River Acquisition Corp. in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect);
(ix) the New Credit Facility has been duly authorized, executed and delivered by Holding and the Company and constitutes a legal, valid and binding instrument enforceable against Holding and the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect);
(x) this Agreement and the Registration Agreement have been duly authorized, executed and delivered by the Company and Holding;
(xi) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company and Holding in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); the Notes are in the form contemplated by the Indenture and have been duly authorized and executed by the Company and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Purchasers pursuant to this Agreement, will be duly and validly issued and outstanding and will constitute legal, valid and binding obligations of the Company and Holding entitled to the benefits of the Indenture and enforceable in accordance with their terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the statements set forth under the heading "Description of Notes" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the 21 Notes and the Indenture, provide a fair summary of such provisions in all material respects;
(xii) the Holding Preferred Stock has been duly and validly authorized by Holding and when the Holding Preferred Stock has been delivered by Holding, countersigned by the Transfer Agent, and paid for in accordance with the terms of this Agreement the Holding Preferred Stock will be validly issued, fully paid and nonassessable; to such counsel's knowledge, the issuance of the Holding Preferred Stock is not subject to preemptive or incorporated other similar rights; and the statements set forth under the heading "Description of the Holding Preferred Stock" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Holding Preferred Stock, provide a fair summary of such provisions in all material respects.
(xiii) the Company Preferred Stock has been duly and validly authorized by reference the Company; and the statements set forth under the heading "Description of the Company Exchange Securities" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Company Preferred Stock, provide a fair summary of such provisions;
(xiv) each of the Company Exchange Indenture and the Company Exchange Debentures have been duly and validly authorized by the Company; and the statements set forth under the heading "Description of the Exchange Securities--Company Exchange Debentures" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Company Exchange Debentures and the Company Exchange Indenture, provide a fair summary of such provisions;
(xv) to such counsel's knowledge (without independent investigation), there is no pending or threatened action or suit or judicial, arbitral or other administrative proceeding to which Holding, the Company or any of their Subsidiaries is a party or of which any property or assets of Holding, the Company or any of their Subsidiaries is the subject that, singly or in the aggregate, questions the validity of this Agreement, the Registration Agreement, the Indenture, the Securities, the Transactions or any action taken or to be taken pursuant hereto or thereto;
(xvi) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Securities Act is required, and no qualification of the Indenture or the Exchange Indenture under the Trust Indenture Act is necessary, for the offer, sale and delivery of the Securities in the manner contemplated by this Agreement; and
(xvii) neither Holding nor the Company is an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), without taking account of any exemption arising out of the number of holders of the Company's or Holding's securities. Such counsel shall also state that such counsel has participated in conferences with officers and other representatives of the Company and Holding, representatives of the independent public accountants for the Company and Holding and representatives of the Initial Purchasers at which the contents of the Final Memorandum and related matters were discussed. Such counsel shall state that although such counsel has made no independent check or verification of the accuracy, completeness or fairness of the statements made in the Final Memorandum (except as set forth in paragraphs (ii), (iii), (xi), (xii), (xiii) and (xiv) above) on the basis of the foregoing (relying as to materiality to a large extent upon the statements of officers and other representatives of the Company and Holding) no facts have come to such counsel's attention that have caused such counsel to believe that the Final Memorandum as of its date and as of the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion on the financial statements or other financial and statistical data included in the Final Memorandum). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California and the federal laws of the United States to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the purchasers and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of Holding and the Company and public officials, copies of which shall be provided to the Purchasers. Such counsel may deliver the opinions relating to the Merger Agreement and the New Credit Facility set forth in paragraphs 6(vii), 6(viii), 6(ix) and 6(x) above by delivering letters dated the Closing Date permitting the Purchasers to rely upon separate opinion letters dated the Closing Date rendered to the parties to the Merger Agreement and the New Credit Facility and containing substantially similar opinions. All references in this Section 6(a) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Company and Holding shall have caused ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special regulatory counsel for the Company and Holding, to have furnished to the Purchasers their opinion dated the Closing Date and addressed to the Purchasers, to the effect that the information and disclosure contained in the Final Memorandum under the headings "Risk Factors - Wireline Competition," "Risk Factors -Wireless Competition," "Risk Factors - PCS System Implementation Risks," "Risk Factors- Relocation of Fixed Microwave Licensees," "Risk Factors - Factors--Government Regulation," "Business - Business Strategy," "Business - Market Potential," "Business -Expansion of Certain Facilities-based Services," "Business - Wireless Services," "Business - Competition" and "Business - Regulation" fairly Business--Government Regulation and accurately summarize the lawsEnvironmental Matters", case is accurate and complete in all material respects, insofar as such information and disclosure relate to Food and Drug Administration law, ruleslegal matters and compliance requirements. Such counsel shall also state that, regulations and orders of the Federal Communications Commission ("FCC") and the comparable state regulatory agencies or bodies with direct regulatory jurisdiction over telecommunications matters in the states in which the Company and any of the Subsidiaries provide intrastate services (the "State Regulatory Agencies") except for such changes with respect to such laws, case law, rules, regulations the other information and orders which could not have a material adverse effect on the Company and, to the best knowledge of such counsel, the statements in or incorporated by reference disclosure contained in the Final Memorandum not specified above, they have no reason to believe that at the Execution Time the Final Memorandum contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the headings "Risk Factors - Dependence on Regional Final Memorandum includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All references in this Section 6(b) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the Closing Date.
(c) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ Operating Companies; US West Centrex Action," "Risk Factors - Refusal of US West to Improve its Processing of Service Orders," "Business- Current Products and Services" and "Business - Legal Proceedings" fairly and accurately summarize such opinion or opinions, dated the legal proceedings set forth therein Closing Date, with respect to the US West Centrex Action issuance and sale of the Securities, the Final Memorandum (as defined amended or supplemented at the Closing Date) and other related matters as the Purchasers may reasonably require, and the Company and Holding shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company and Holding shall have furnished to the Purchasers certificates of the Company and of Holding, signed by the President and Chief Financial Officer of the Company and the President or Vice President and an Assistant Secretary of Holding, dated the Closing Date, to the effect that the signers of such certificate have examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and the Registration Agreement and that:
(i) the representations and warranties of the Company and of Holding in this Agreement and the Registration Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and Holding have complied in all material respects with all the agreements and satisfied all the conditions on their part to be performed or incorporated by reference satisfied hereunder or thereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Final Memorandum, there has been no material adverse change in the condition (financial or otherwise), properties, business, results of operations or prospects of the Company, Holding or any of their respective Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) At the Execution Time and at the Closing Date, the Holding and Company shall have caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to have furnished to the Purchasers a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Purchasers, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants (the "AICPA") and the action against US West Communications, Inc. concerning the processing of orders except for such changes with respect to such legal proceedings and action which could not have a material adverse stating in effect on the Company;that:
(i) in their op
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