Conditions to the Obligations of the Purchasers. (a) Each Purchaser's obligation to purchase TSC Shares is subject to the fulfillment on or prior to the date hereof of the conditions set forth in this Section 6.1(a). (1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, shall be true and correct in all material respects when made. (2) The TSC Shares shall have been approved for listing on NASDAQ. (3) TSC shall have entered into a Registration Rights Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement"). (4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1. (v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware. (vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois. (vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such notice.
Appears in 1 contract
Sources: Common Stock Purchase and Sale Agreement (Eloyalty Corp)
Conditions to the Obligations of the Purchasers. The obligations of the Purchasers to purchase the Senior Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and as of 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) Each Purchaser's obligation to purchase TSC Shares is subject The Company shall have furnished to the fulfillment Purchasers the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, III, Esq., Chief Counsel and Corporate Secretary for the Company, dated the Closing Date, in the form attached hereto as Exhibit A.
(b) The Purchasers shall have received from their counsel such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Senior Notes, the Senior Notes Indenture and other related matters as the Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(c) The Company shall have furnished to the Purchasers a certificate of the Company signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, in the form attached hereto as Exhibit B.
(d) On or prior to the Closing Date, the Purchasers shall be in possession of the Junior Subordinated Notes.
(e) If the Purchasers have delivered a Public Offer Notice pursuant to Schedule C hereto with a Resale Closing Date on or prior to the date hereof Closing Date, all conditions to such resale shall have been satisfied. If (i) any of the conditions set forth specified in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, 5 shall be true and correct in all material respects when made.
(2) The TSC Shares shall not have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights fulfilled when and as provided in this Securities Purchase Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, or (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations opinions and certificates mentioned above or warranties of TSC hereinelsewhere in this Securities Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this Securities Purchase Agreement and nevertheless such Purchaser proceeds with the purchase all obligations of the TSC SharesPurchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties given to the extent described Company in such noticewriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Securities Purchase and Registration Rights Agreement (PNC Financial Services Group, Inc.)
Conditions to the Obligations of the Purchasers. (a) Each Purchaser's obligation The obligations of the Purchasers to purchase TSC Shares is the Securities shall be subject to the fulfillment on or prior to the date hereof accuracy in all material respects of the conditions set forth in this Section 6.1(a).
(1) The representations and warranties made by TSC of the Endeavour Parties contained herein at the First Closing Date and the Second Closing Date (except to the extent such representations and warranties expressly relate to a specific earlier date (in Section 4, when read together with the Disclosure Letter, which case such representations and warranties shall be true and correct as of such specified earlier date)), to the accuracy of the statements of the Company made in all material respects when madeany certificates pursuant to the provisions hereof, to the performance by the Endeavour Parties of their obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused V▇▇▇▇▇ & E▇▇▇▇▇ LLP, counsel for the Endeavour Parties, and W▇▇▇▇▇▇▇ and Wedge, Nevada counsel for the Company, to furnish to the Purchasers opinions, dated as of the First Closing Date and as of the Second Closing Date, and addressed to the Purchasers, in a form and substance reasonably satisfactory to the Purchasers.
(2b) The TSC Shares Endeavour Parties, as applicable, shall have been approved for listing on NASDAQ.
(3) TSC shall have entered into a executed and delivered the Warrant Agreement, the Registration Rights AgreementAgreement and (as of the Second Closing Date) the indenture under which the Notes are to be issued, substantially all in forms and substance reasonably satisfactory to the form of Exhibit C (Purchasers, and the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State executed copies thereof. If any of the State of Delaware.
(vi) Purchasers conditions specified in this Section 7 shall not have received a certificate of good standing issued been fulfilled when and as of a recent date by the Secretary of State provided in this Agreement, or if any of the State of Delaware opinions and the Secretary of State of the State of Illinois.
(vii) Purchasers certificates mentioned above or elsewhere in this Agreement shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments not be reasonably satisfactory in form and substance to the Restated Certificate of Incorporation of TSC since a specified datePurchasers and counsel for the Purchasers, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures all obligations of the officers of TSC executing this Agreement and Purchasers hereunder may be canceled at, or at any ancillary agreementtime prior to, the First Closing Date or the Second Closing Date, as applicable, by the Purchasers. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more Notice of such conditions and without written waiver. To the extent that on or prior cancellation shall be given to the execution Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 will be delivered at the office of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail counsel for the failure of any of such conditions or Purchaser, at O▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ at 9:00 a.m., New York time, on the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such noticeFirst Closing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (Endeavour International Corp)
Conditions to the Obligations of the Purchasers. The obligation of the ----------------------------------------------- Purchasers to consummate the purchase and sale of the Shares and the Warrants shall be subject to the satisfaction at or prior to the Closing of the following conditions:
(a) Each Purchaser's obligation All of the representations and warranties of the Company set forth in this Agreement shall be true and correct as if made on and as of the Closing Date.
(b) The Company shall have in all material respects fully performed and complied with all agreements and conditions required under this Agreement to purchase TSC Shares is subject to the fulfillment be performed or complied by it on or prior to the date hereof Closing Date.
(c) The Company shall have delivered to each Purchaser a certificate of one of its officers to the conditions effect set forth in this Section 6.1(aSections 3.3(a) and (b).
(1d) The representations and warranties made by TSC in Section 4, when read together Certificate of Amendment shall have been filed with the Disclosure Letter, Department of State of the State of New York and the Company shall be true and correct in all material respects when madehave delivered to each Purchaser a copy thereof certified by the Department of State of the State of New York or other reasonably satisfactory evidence of such filing.
(2e) The TSC Shares Company shall have been approved for listing on NASDAQdelivered to each Purchaser a stock certificate representing the Shares, and a warrant certificate representing the Warrants, to be issued and sold to such Purchaser at the Closing.
(3f) TSC The Company shall have entered into a Registration executed and delivered to each of the Purchasers the Rights Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4g) The Purchasers shall have received an opinion of Sidley Salans ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Austin substantially ▇▇▇▇▇▇ in form and substance reasonably satisfactory to the form attached to Exhibit D-1Purchasers.
(vh) The Purchasers shall have received a copy copies of TSCresolutions of the Company's Restated Certificate Board of Incorporation Directors, certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSCCompany, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing approving the execution and performance delivery of this Agreement and the consummation of the transactions contemplated hereby hereby.
(i) The Company shall have delivered to each Purchaser a copy of its Restated Certificate of Incorporation, including the Certificate of Amendment, and By-Laws certified by its Secretary or an Assistant Secretary as true and correct as of the Closing Date.
(ivj) The Company shall have delivered to each Purchaser a certificate of its Secretary or an Assistant Secretary as to the incumbency and signatures of the officers of TSC the Company executing this Agreement Agreement, the Rights Agreement, the Warrants and any ancillary agreement. Notwithstanding the failure of any one or more certificates representing the Shares, together with evidence of the foregoing conditions, incumbency of such Secretary or Assistant Secretary.
(k) The Company shall have delivered to each Purchaser may proceed with the purchase a certificate of the TSC Shares without satisfactionDepartment of State of the State of New York as to the good standing of the Company in such state, in whole or in part, dated as of any one or a date not more of such conditions and without written waiver. To the extent that on or than seven days prior to the execution Closing Date.
(l) The Company shall have executed and delivered to each Purchaser for which it is applicable a regulatory side letter and such other forms and documents as are necessary for each Purchaser subject to the rules and regulations of the Small Business Administration to comply therewith.
(m) The Purchasers shall have received reasonably satisfactory evidence that, under the Nasdaq's rules and policies, the issuance and sale of the Shares and the Warrants may be made without the approval of the Company's shareholders and without the imposition of conditions or limitations on the Company deemed unduly burdensome by the Purchasers.
(n) All corporate and other proceedings taken or to be taken in connection with the transactions contemplated by this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of at or before such conditions or the breach by TSC of any of the representations or warranties of TSC hereinClosing, and nevertheless such Purchaser proceeds with the purchase of the TSC Sharesall instruments and other documents incident thereto, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties satisfactory in form and substance to the extent described in such noticePurchasers and their counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (Interep National Radio Sales Inc)
Conditions to the Obligations of the Purchasers. The obligations of the Purchasers to purchase the Firm Securities on the Closing Date or the Option Securities on the Additional Closing Date, 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 Initial Sale Time, the Closing Date and the Additional Closing Date, if any, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions of this Section, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, their opinion, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the fulfillment on or prior Representatives, to the date hereof of the conditions effect set forth in this Section 6.1(a).Annex II hereto;
(1b) The Representatives shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, their opinion, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Representatives, to the effect set forth in Annex III hereto;
(c) The Representatives shall have received from the General Counsel to the Company, his opinion, dated the Closing Date or the Additional Closing Date, as the case may be and addressed to the Representatives, to the effect set forth in Annex IV hereto;
(d) The Representatives shall have received from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsels for the Purchasers, such opinion or opinions, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Indenture, the Disclosure Package, the Final Offering Circular (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters;
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed in his representative capacity by the Chief Financial Officer of the Company, dated the Closing Date or the Additional Closing Date, as the case may be, to the effect that:
(i) the representations and warranties made by TSC of the Company in Section 4, when read together with the Disclosure Letter, shall be this Agreement are true and correct in all material respects when madeon and as of the Closing Date or the Additional Closing Date, as the case may be, with the same effect as if made on such Closing Date or such Additional Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date or such Additional Closing Date, as the case may be;
(ii) since the date of the most recent financial statements included or incorporated by reference in the Final Offering Circular, as amended or supplemented prior to the Execution Time, there has been no Material Adverse Change, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Offering Circular, as amended or supplemented prior to the Execution Time;
(f) At the Execution Time and the Closing Date and the Additional Closing Date, as the case may be, the Representatives shall have received from Ernst & Young LLP a letter or letters dated such date or dates, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Final Offering Circular, the Disclosure Package and any Issuer Free Writing Communication;
(g) At the Execution Time and the Closing Date and the Additional Closing Date, if any, the Representatives shall have received from NSAI a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Purchasers covering the matters described in Annex V hereto;
(h) The Representatives shall have received an agreement for the benefit of the Purchasers in the form set forth as Annex I hereto, signed by each director and executive officer listed in the Company’s Annual Report on Form 10-K, filed with the Commission on February 24, 2020 (each, a “Lock-Up Agreement”), other than any such director or officer who has resigned, has retired, or is otherwise no longer serving in such capacity before the Execution Time, and each such Lock-Up Agreement shall be in full force and effect on the Closing Date and the Additional Closing Date, as the case may be.
(2i) The TSC Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Offering Circular as amended or supplemented prior to the Execution Time or any Issuer Free Writing Communication, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), 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 Offering Circular, as amended or supplemented prior to the Execution Time, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Final Offering Circular and any Issuer Free Writing Communication;
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(k) A number of shares of Common Stock equal to the Conversion Shares shall have been approved for listing on NASDAQ.the NYSE, subject only to notice of conversion of the Offered Securities by the Company to the NYSE at the applicable time; and
(3l) TSC Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have entered into a Registration Rights furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State or if any of the State of Delaware.
(vi) Purchasers opinions and certificates mentioned above or elsewhere in this Agreement shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware not be in all material respects reasonably satisfactory in form and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments substance to the Restated Certificate of Incorporation of TSC since a specified dateRepresentatives, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures all obligations of the officers Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date, by the Representatives. Notice of TSC executing this Agreement and any ancillary agreementsuch cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Notwithstanding the failure of any one or more The Representatives may in their sole discretion waive on behalf of the foregoing conditions, each Purchaser may proceed Purchasers compliance with any conditions to the purchase obligations of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiverPurchasers hereunder. To the extent that on or prior The documents required to be delivered by this Section 6 shall be delivered to the execution offices of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Dallas, Texas 75201 on the failure of any of Closing Date or such conditions or other place as the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser Representatives shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such noticeso instruct.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. (a) Each Purchaser's obligation to purchase TSC Shares is The respective obligations of each Purchaser hereunder in connection with the Closing shall be subject to satisfaction or waiver of the fulfillment following conditions:
(i) this Agreement duly executed by the Company shall have been delivered to such Purchaser;
(ii) legal opinions of the Company’s U.S. counsel and Canadian counsel, in each case dated the Closing Date and in substantially the form that is customary for a transaction of this nature and reasonably acceptable to the Placement Agent, shall have been delivered to the Placement Agent and the Purchasers;
(iii) a copy of the Company’s irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver that number of Common Shares to be issued to such Purchaser via the DWAC system registered in the name of such Purchaser or as such Purchaser shall direct shall have been delivered to such Purchaser;
(iv) a copy of the warrant certificate representing that number of Warrants to be issued to such Purchaser registered in the name of such Purchaser or as such Purchaser shall instruct shall have been delivered to such Purchaser (with the original warrant certificate representing such Warrants to be delivered to such Purchaser within three Trading Days of the Closing Date);
(v) the Prospectus and Prospectus Supplement shall have been delivered to such Purchaser (which Prospectus and Prospectus Supplement may be delivered to such Purchaser in accordance with Rule 172 under the Securities Act);
(vi) the accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained herein (unless such representations and warranties were delivered as of a specific date);
(vii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed by the Company;
(viii) there shall have been no Material Adverse Effect with respect to the Company since the date hereof hereof;
(ix) from the date of the Placement Agent Agreement until Closing, trading in the Common Shares shall not have been ceased or suspended by any Securities Regulator or the Company’s principal Trading Market in either the United States or Canada (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared by the United States, New York State authorities or Canadian authorities; and
(x) each of the conditions to the obligations of the Placement Agent and the Purchasers set forth in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, shall be true and correct in all material respects when made.
(2) The TSC Shares Placement Agent Agreement shall have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date satisfied or waived by the Secretary of State of the State of DelawarePlacement Agent.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such notice.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dejour Enterprises LTD)
Conditions to the Obligations of the Purchasers. The obligations of the several Purchasers to purchase the Senior Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date hereof 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 their obligations hereunder and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Company shall have furnished to the fulfillment Purchasers in form and substance satisfactory to the Purchasers, the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President, General Counsel and Chief Compliance Officer of the Company, or such other counsel for the Company as may be acceptable to the Purchasers, dated the Closing Date, to the effect set forth hereto as Exhibit A-1, the opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date, to the effect set forth hereto as Exhibit A-2, and the opinion of G. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq., Corporate Counsel of Alabama Gas Corporation, an Alabama corporation that is an indirect wholly owned subsidiary of the Company, dated the Closing Date, to the effect set forth hereto as Exhibit A-3.
(b) The Purchasers shall have received from their counsel such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Senior Notes, the Senior Indenture and such other related matters as the Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(c) The Company shall have furnished to the Purchasers a certificate signed on behalf of the Company by the President, an Executive Vice President or a Senior Vice President of the Company and the Chief Financial Officer or principal accounting officer of the Company, dated the Closing Date, in the form attached hereto as Exhibit B.
(d) At or prior to the Closing Date, the Purchasers shall be in possession of the Junior Notes purchased by such Purchasers pursuant to the Junior Note Purchase Agreement, dated the date hereof hereof. If (i) any of the conditions set forth specified in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, 5 shall be true and correct in all material respects when made.
(2) The TSC Shares shall not have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights fulfilled when and as provided in this Senior Notes Purchase Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, or (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations opinions and certificates mentioned above or warranties of TSC hereinelsewhere in this Senior Notes Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this Senior Notes Purchase Agreement and nevertheless such Purchaser proceeds with the purchase all obligations of the TSC SharesPurchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties given to the extent described Company in such noticewriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Securities Purchase and Registration Rights Agreement (Spire Inc)
Conditions to the Obligations of the Purchasers. The obligations of the Purchasers hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Issuers herein are, at and as of the date hereof and the Time of Delivery, true and correct, the condition that the Issuers shall have performed all their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Time of Delivery and addressed to the fulfillment on or prior Purchasers, with respect to the date hereof issuance and sale of the conditions set forth in this Section 6.1(a)Notes and the Indenture and other related matters as the Purchasers may reasonably require, and the Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(1b) The representations and warranties made by TSC in Section 4▇▇▇▇▇▇, when read together with ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Disclosure LetterIssuers, shall be true and correct have furnished to you their written opinions, dated the Time of Delivery, substantially in all material respects when madethe form of Exhibit B hereto.
(2c) The TSC Shares ▇▇▇▇, Raywid & ▇▇▇▇▇▇▇▇▇, L.L.P., special regulatory counsel to the Issuers, shall have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights Agreementfurnished to you their written opinion, dated the Time of Delivery, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement")hereto.
(4d) Purchasers ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., General Counsel of the Company, shall have received an opinion furnished to you his written opinion, dated as of Sidley & Austin the Time of Delivery, substantially in the form attached to of Exhibit D-1D hereto.
(ve) Purchasers On the date of this agreement and on the Closing Date, KPMG LLP shall have received furnished to you, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to you, containing statements and information of the type customarily included in accountants’ "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a copy "cut-off" date no more than three business days prior to the Closing Date;
(i) None of TSC's Restated Certificate the Issuers, any of Incorporation certified the Parent Companies or any of the Issuers’ subsidiaries shall have sustained since the date of the latest audited financial statements included in each of the Time of Sale Information and the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Time of Sale Information and the Offering Memorandum, and (ii) since the respective dates as of a recent date by the Secretary of State which information is given in each of the State Time of Delaware.Sale Information and the Offering Memorandum (for clarification purposes, this excludes any amendment or supplement to the Offering Memorandum on or after the date of this Agreement) there shall not have been any change in the capital stock, limited liability company interests, partnership interests or long-term debt of the Issuers or any of their subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ or members’ equity, or results of operations of the Issuers and their subsidiaries, otherwise than as set forth or contemplated in each of the Time of Sale Information and the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of a majority in interest of the Purchasers so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in this Agreement, the Time of Sale Information and the Offering Memorandum;
(vig) Purchasers shall have received a certificate Subsequent to the execution and delivery of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSCthis Agreement, dated as of a recent date, as to (i) no amendments to downgrading shall have occurred in the Restated Certificate rating accorded the Notes or any other debt securities or preferred stock issued or guaranteed by the Issuers by any "nationally recognized statistical rating organization," as such term is defined by the Commission for purposes of Incorporation of TSC since a specified date, Rule 436(g)(2) under the Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the By-laws Notes or of TSCany other debt securities or preferred stock issued or guaranteed by the Issuers (other than an announcement with positive implications of a possible upgrading or an announcement which reaffirms, reiterates or restates the substance of any announcement made prior to the date hereof);
(h) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq National Market; (ii) a suspension or material limitation in trading in CCI’s Class A common stock on the Nasdaq National Market, (iii) the resolutions adopted a general moratorium on commercial banking activities declared by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and either Federal or New York State authorities; or (iv) incumbency and signatures the outbreak or escalation of hostilities or the declaration of a national emergency or war or the occurrence of any other calamity or crisis, if the effect of any such event specified in this clause (iv) in the judgment of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one Purchasers makes it impracticable or more of the foregoing conditions, each Purchaser may inadvisable to proceed with the purchase offering, sale or delivery of the TSC Shares without satisfaction, Notes on the terms and in whole the manner contemplated in each of the Time of Sale Information and the Offering Memorandum;
(i) The Notes shall have been designated for trading on PORTAL and shall be eligible for clearance and settlement through DTC; and
(j) The Issuers shall have furnished or in part, caused to be furnished to you at the Time of any one or more Delivery certificates of officers of each Issuer satisfactory to you as to the accuracy of the representations and warranties of the Issuers herein at and as of such conditions and without written waiver. To Time of Delivery, as to the extent that on performance by the Issuers of all their obligations hereunder to be performed at or prior to such Time of Delivery, as to the execution matters set forth in subsections (g) and (h) of this Agreement TSC delivers Section 8 and as to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it other matters as you may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such noticereasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Purchasers. The obligations of the several Purchasers to purchase the Senior Notes shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein at the date hereof and the Closing Date, to the accuracy of the statements of the Company or the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Guarantor shall have furnished to the fulfillment on Purchasers in form and substance satisfactory to the Purchasers, the opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Counsel, or such other counsel for the Company and the Guarantor as may be acceptable to the Purchasers, dated the Closing Date, to the effect set forth hereto as Exhibit A-1, and the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, to the effect set forth hereto as Exhibit A-2.
(b) The Purchasers shall have received from their counsel such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Senior Notes, the issuance of the Guarantees, the Senior Indenture and other related matters as the Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(c) The Guarantor shall have furnished to the Purchasers a certificate of the Controller and the Treasurer or Assistant Treasurer of the Guarantor, and of the President, the Treasurer or the Assistant Treasurer of the Company, dated the Closing Date, in the forms attached hereto as Exhibit B.
(d) At or prior to the date hereof Closing Date, the Purchasers shall be in possession of the Junior Notes. If (i) any of the conditions set forth specified in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, 5 shall be true and correct in all material respects when made.
(2) The TSC Shares shall not have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights fulfilled when and as provided in this Senior Notes Purchase Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, or (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations opinions and certificates mentioned above or warranties of TSC hereinelsewhere in this Senior Notes Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this Senior Notes Purchase Agreement and nevertheless such Purchaser proceeds with the purchase all obligations of the TSC SharesPurchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties given to the extent described Company in such noticewriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Securities Purchase and Registration Rights Agreement (PPL Corp)
Conditions to the Obligations of the Purchasers. The obligations of the several Purchasers to purchase the Senior Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date hereof 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 their obligations hereunder and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Company shall have furnished to the fulfillment Purchasers in form and substance satisfactory to the Purchasers, the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel to the Company, dated the Closing Date, to the effect set forth hereto as Exhibit A-1 and the opinion of Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Counsel for the Company, dated the Closing Date, to the effect set forth hereto as Exhibit A-2.
(b) The Purchasers shall have received from their counsel such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Senior Notes, the Indenture and such other related matters as the Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it reasonably requires for the purpose of enabling it to pass upon such matters.
(c) The Company shall have furnished to the Purchasers a certificate signed on behalf of the Company by an executive officer of the Company and a principal financial or accounting officer of the Company, dated the Closing Date, in the form attached hereto as Exhibit B.
(d) At or prior to the date hereof Closing Date, the Purchasers shall be in possession of the Subordinated Notes purchased by such Purchasers pursuant to the Subordinated Note Purchase Agreement. If (i) any of the conditions set forth specified in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, 5 shall be true and correct in all material respects when made.
(2) The TSC Shares shall not have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights fulfilled when and as provided in this Exchange Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, or (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations opinions and certificates mentioned above or warranties of TSC hereinelsewhere in this Exchange Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this Exchange Agreement and nevertheless such Purchaser proceeds with the purchase all obligations of the TSC SharesPurchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties given to the extent described Company in such noticewriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation of ----------------------------------------------- the Purchasers to consummate the purchase and sale of the Shares and the Warrants shall be subject to the satisfaction at or prior to the Closing of the following conditions:
(a) Each Purchaser's obligation All of the representations and warranties of the Company set forth in this Agreement shall be true and correct as if made on and as of the Closing Date.
(b) The Company shall have in all material respects fully performed and complied with all agreements and conditions required under this Agreement to purchase TSC Shares is subject to the fulfillment be performed or complied by it on or prior to the date hereof Closing Date.
(c) The Company shall have delivered to each Purchaser a certificate of one of its officers to the conditions effect set forth in this Section 6.1(aSections 3.3(a) and (b).
(1d) The representations and warranties made by TSC in Section 4, when read together Certificate of Amendment shall have been filed with the Disclosure Letter, Department of State of the State of New York and the Company shall be true and correct in all material respects when madehave delivered to each Purchaser a copy thereof certified by the Department of State of the State of New York or other reasonably satisfactory evidence of such filing.
(2e) The TSC Shares Company shall have been approved for listing on NASDAQdelivered to each Purchaser a stock certificate representing the Shares, and a warrant certificate representing the Warrants, to be issued and sold to such Purchaser at the Closing.
(3f) TSC The Company shall have entered into a Registration executed and delivered to each of the Purchasers the Rights Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4g) The Purchasers shall have received an opinion of Sidley Salans ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Austin substantially ▇▇▇▇▇▇ in the form attached to set forth in Exhibit D-1E dated the Closing Date.
(vh) The Purchasers shall have received a copy copies of TSCresolutions of the Company's Restated Certificate Board of Incorporation Directors, certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSCSeller, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing approving the execution and performance delivery of this Agreement and the consummation of the transactions contemplated hereby hereby.
(i) The Company shall have delivered to each Purchaser a copy of its Restated Certificate of Incorporation, including the Certificate of Amendment, and By-laws certified by its Secretary or an Assistant Secretary as true and correct as of the Closing Date.
(ivj) The Company shall have delivered to each Purchaser a certificate of its Secretary or an Assistant Secretary as to the incumbency and signatures of the officers of TSC the Company executing this Agreement Agreement, the Rights Agreement, the Warrants and any ancillary agreement. Notwithstanding the failure of any one or more certificates representing the Shares, together with evidence of the foregoing conditions, each Purchaser may proceed incumbency of such Secretary or Assistant Secretary.
(k) All corporate and other proceedings taken or to be taken in connection with the purchase of the TSC Shares without satisfactiontransactions contemplated by this Agreement at or before such Closing, and all instruments and other documents incident thereto, shall be satisfactory in whole or in part, of any one or more of such conditions form and without written waiver. To the extent that on or prior substance to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such noticetheir counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (Interep National Radio Sales Inc)
Conditions to the Obligations of the Purchasers. The obligations of the several Purchasers to purchase the Senior Notes shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein at the date hereof and the Closing Date, to the accuracy of the statements of the Company or the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Guarantor shall have furnished to the fulfillment on Purchasers in form and substance satisfactory to the Purchasers, the opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Counsel, or such other counsel for the Company and the Guarantor as may be acceptable to the Purchasers, dated the Closing Date, to the effect set forth hereto as Exhibit A-1, and the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, to the effect set forth hereto as Exhibit A-2.
(b) The Purchasers shall have received from their counsel such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Senior Notes, the issuance of the Guarantees, the Senior Indenture and other related matters as the Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(c) The Guarantor shall have furnished to the Purchasers a certificate of the Controller and the Treasurer or Assistant Treasurer of the Guarantor, and of the President, the Treasurer or the Assistant Treasurer of the Company, dated the Closing Date, in the forms attached hereto as Exhibit B.
(d) At or prior to the Closing Date, the Purchasers shall be in possession of the Junior Notes purchased by such Purchasers pursuant to the Junior Note Purchase Agreement, dated the date hereof hereof. If (i) any of the conditions set forth specified in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, 5 shall be true and correct in all material respects when made.
(2) The TSC Shares shall not have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights fulfilled when and as provided in this Senior Notes Purchase Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, or (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations opinions and certificates mentioned above or warranties of TSC hereinelsewhere in this Senior Notes Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this Senior Notes Purchase Agreement and nevertheless such Purchaser proceeds with the purchase all obligations of the TSC SharesPurchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties given to the extent described Company in such noticewriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Securities Purchase and Registration Rights Agreement (PPL Corp)
Conditions to the Obligations of the Purchasers. The obligations of the several Purchasers to purchase the New Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the date hereof 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 their obligations hereunder and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Company shall have furnished to the fulfillment Purchasers in form and substance satisfactory to the Purchasers, the opinion of the Company’s Vice President, Chief Legal Officer and Assistant Corporate Secretary, or such other counsel for the Company as may be acceptable to the Purchasers, dated the Closing Date, substantially to the effect set forth hereto as Exhibit B-1, the opinion of ▇▇▇▇▇▇▇ LLP, dated the Closing Date, substantially to the effect set forth hereto as Exhibit B-2, and the opinion of Spain & ▇▇▇▇▇▇, LLC, local counsel for Spire Alabama Inc., an Alabama corporation that is an indirect wholly owned subsidiary of the Company, dated the Closing Date, substantially to the effect set forth hereto as Exhibit B-3.
(b) The Purchasers shall have received from their counsel such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the New Notes, the New Notes Indenture and such other related matters as the Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(c) The Company shall have furnished to the Purchasers a certificate signed on behalf of the Company by the President, an Executive Vice President or a Senior Vice President of the Company and the Chief Financial Officer or principal accounting officer of the Company, dated the Closing Date, in the form attached hereto as Exhibit C.
(d) At or prior to the Closing Date, the Purchasers shall be in possession of the Remarketable Notes purchased by such Purchasers pursuant to the Remarketable Notes Purchase Agreement, dated the date hereof hereof. If (i) any of the conditions set forth specified in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, 5 shall be true and correct in all material respects when made.
(2) The TSC Shares shall not have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights Agreement, substantially fulfilled when and as provided in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, this New Notes Purchase Agreement or (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations opinions and certificates mentioned above or warranties of TSC hereinelsewhere in this New Notes Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this New Notes Purchase Agreement and nevertheless such Purchaser proceeds with the purchase all obligations of the TSC SharesPurchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties given to the extent described Company in such noticewriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Securities Purchase and Registration Rights Agreement (Spire Inc)
Conditions to the Obligations of the Purchasers. The respective obligations of each Purchaser hereunder in connection with the Closing shall be subject to satisfaction or waiver of the following conditions:
(i) this Agreement duly executed by the Company shall have been delivered to each Purchaser;
(ii) legal opinions of the Company’s U.S. counsel and Canadian counsel, in each case dated the Closing Date and in substantially the form that is customary for a transaction of this nature and reasonably acceptable to each Purchaser, shall have been delivered to each Purchaser;
(iii) a copy of the Company’s treasury order, reservation order and instructions to the Transfer Agent, in the form attached hereto as Exhibit B, instructing the Transfer Agent to (a) Each deliver that number of Common Shares to be issued to each Purchaser's obligation to purchase TSC : (i) directing delivery via the DWAC system registered in the name of each such Purchaser or its nominee as each such Purchaser shall direct and (b) reserve 130% of the maximum number of Warrant Shares is subject as are issuable upon exercise of the Warrants issued to the fulfillment Purchasers, shall have been executed by the Company, countersigned by the Transfer Agent and delivered to each Purchaser
(iv) a copy of the warrant certificate representing that number of Warrants to be issued to each Purchaser registered in the name of each such Purchaser or as each such Purchaser shall direct shall have been delivered to such Purchaser (with the original warrant certificate representing such Warrants to be delivered to such Purchaser within three Trading Days of the Closing Date);
(v) in the case of the U.S. Purchaser, the Prospectus shall have been delivered to the U.S. Purchaser (which Prospectus may be delivered to the U.S. Purchaser in accordance with Rule 172 under the U.S. Securities Act);
(vi) in the case of the Offshore Purchaser, the Prospectus shall have been delivered to the Offshore Purchaser, for informational purposes only;
(vii) the Canadian Prospectus shall have been delivered to each of the U.S. Purchaser and Offshore Purchaser;
(viii) the accuracy in all material respects of the representations and warranties of the Company contained herein, and (i) in the case of the U.S. Purchaser those representations and warranties set forth in Appendix A to this Agreement, and (ii) in the case of the Offshore Purchaser those representations and warranties set forth in Appendix B to this Agreement, in each case on the Closing Date (unless such representations and warranties were delivered as of a specific date); and
(ix) all obligations, covenants and agreements of the Company required to be performed at or prior to the date hereof of the conditions set forth in this Section 6.1(a).
(1) The representations and warranties made by TSC in Section 4, when read together with the Disclosure Letter, shall be true and correct in all material respects when made.
(2) The TSC Shares Closing Date shall have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date performed by the Secretary of State of the State of DelawareCompany.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on or prior to the execution of this Agreement TSC delivers to Purchasers a written notice specifying in reasonable detail the failure of any of such conditions or the breach by TSC of any of the representations or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase of the TSC Shares, such Purchaser shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure of any such conditions or the breach of any such representations or warranties to the extent described in such notice.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dejour Enterprises LTD)
Conditions to the Obligations of the Purchasers. The obligations of the Purchasers hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Issuers herein are, at and as of the date hereof and the Time of Delivery, true and correct, the condition that the Issuers shall have performed all their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Purchasers shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ llp, counsel for the Purchasers, such opinion or opinions, dated the Time of Delivery and addressed to the fulfillment on or prior Purchasers, with respect to the date hereof issuance and sale of the conditions set forth in this Section 6.1(a)Notes and the Indenture and other related matters as the Purchasers may reasonably require, and the Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(1b) The representations and warranties made by TSC in Section 4I▇▇▇▇ & M▇▇▇▇▇▇ LLP, when read together with counsel for the Disclosure LetterIssuers, shall be true and correct in all material respects when made.
(2) The TSC Shares shall have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights Agreementfurnished to you their written opinions, dated the Time of Delivery, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement")A▇▇▇▇ ▇▇ hereto.
(4c) Purchasers C▇▇▇, R▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, L.L.P., special regulatory counsel to the Issuers, shall have received an opinion of Sidley & Austin substantially in the form attached furnished to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by the Secretary of State of the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSCyou their written opinion, dated as the Time of a recent dateDelivery, as in form and substance reasonably satisfactory to you, to the effect that:
(i) no amendments to The issue and sale of the Restated Certificate of Incorporation of TSC since a specified date, (ii) Notes and the By-laws of TSC, (iii) the resolutions adopted compliance by the Board Issuers with all the provisions of Directors of TSC authorizing the execution Notes, the Indenture, the Exchange and performance of Registration Rights Agreement and this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures consummation of the officers of TSC executing this Agreement transactions herein and therein contemplated do not and will not contravene the Cable Acts or any ancillary agreement. Notwithstanding the failure of any one order, rule or more regulation of the foregoing conditionsFCC to which the Issuers or any of their Parent Companies or subsidiaries or any of their property is subject; however, each Purchaser may proceed with to the purchase of extent that any document purports to grant a security interest in licenses issued by the TSC Shares without satisfactionFCC, the FCC has taken the position that security interests in whole or in part, of any one or more of such conditions and without written waiverFCC licenses are not valid. To the extent that on any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Notes and the compliance by the Issuers with all the provisions of the Notes, the Indenture, the Exchange and Registration Rights Agreement and this Agreement and the consummation of the transactions herein and therein contemplated; however, to the execution extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of this Agreement TSC delivers an FCC license in the event of a default or for any other reason, it may be necessary to Purchasers a written notice specifying obtain prior FCC consent;
(iii) The statements set forth in reasonable detail the Offering Memorandum under the captions "Risk Factors" under the subheading "Risks relating to regulatory and legislative matters" insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(iv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Issuers’ and their Parent Companies and subsidiaries’ management, the Company and its Parent Companies and subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Offering Memorandum and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television, industry, to such counsel’s knowledge, based solely upon its review of any the publicly available records of such conditions the FCC and upon inquiry of the Issuers’ and their Parent Companies’ and subsidiaries’ management, during the time the cable systems of the Company and its Parent Companies and subsidiaries have been owned by the Company and its Parent Companies and subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the breach by TSC FCC relating to the ongoing operations of any of the representations Company or warranties one of TSC hereinits subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its Parent Companies or subsidiaries or any cable system of the Company or any of its Parent Companies or subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) T▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of the Company, shall have furnished to you his written opinion, dated as of the Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached to such counsel’s opinion (the "Charter Subsidiaries") has been duly incorporated or formed, as the case may be, and nevertheless is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as otherwise set forth in the Offering Memorandum, and except for liens not prohibited under the credit agreements listed on such Purchaser proceeds schedule, all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly 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 interest, claim, lien or encumbrance;
(ii) Each of the Issuers and the Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Issuers, the Parent Companies or any of the Issuers’ subsidiaries is party or of which any property of the Issuers, the Parent Companies or any of the Issuers’ subsidiaries is the subject, of a character required to be disclosed in a registration statement on Form S-1, which is not disclosed in the Offering Memorandum, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Offering Memorandum, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Notes and the compliance by the Issuers with all the provisions of the Notes, the Indenture, the Exchange and Registration Rights Agreement and this Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries;
(e) At the Time of Delivery, KPMG LLP shall have furnished to you a letter dated the date of delivery thereof, in form and substance satisfactory to you;
(i) None of the Issuers, any of the Parent Companies or any of the Issuers’ subsidiaries shall have sustained since the date of the latest audited financial statements that will be included in the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum, and (ii) since the respective dates as of which information is given in the Offering Memorandum (for clarification purposes, this excludes any amendment or supplement to the Offering Memorandum on or after the date of this Agreement) there shall not have been any change in the capital stock, limited liability company interests, partnership interests or long-term debt of the Issuers or any of their subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ or members’ equity, or results of operations of the Issuers and their subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of a majority in interest of the Purchasers so material and adverse as to make it impracticable or inadvisable to proceed with the purchase offering or the delivery of the TSC SharesNotes on the terms and in the manner contemplated in this Agreement and in the Offering Memorandum;
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Notes or any other debt securities or preferred stock issued or guaranteed by the Issuers by any "nationally recognized statistical rating organization," as such Purchaser term is defined by the Commission for purposes of Rule 436(g)(2) under the Act; and (ii) no such organization shall be deemed to have waived for all purposes any rights publicly announced that it has under surveillance or remedies it may have against the Sellers by reason review, or has changed its outlook with respect to, its rating of the failure Notes or of any other debt securities or preferred stock issued or guaranteed by the Issuers (other than an announcement with positive implications of a possible upgrading or an announcement which reaffirms, reiterates or restates the substance of any announcement made prior to the date hereof);
(h) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq National Market; (ii) a suspension or material limitation in trading in CCI’s Class A common stock on the Nasdaq National Market, (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; or (iv) the outbreak or escalation of hostilities or the declaration of a national emergency or war or the occurrence of any other calamity or crisis, if the effect of any such conditions event specified in this clause (iv) in the judgment of the Purchasers makes it impracticable or inadvisable to proceed with the offering; sale or the breach delivery of any such representations the Notes on the terms and in the manner contemplated in the Offering Memorandum;
(i) The Notes shall have been designated for trading on PORTAL; and
(j) The Issuers shall have furnished or warranties caused to be furnished to you at the Time of Delivery certificates of officers of each Issuer satisfactory to you as to the extent described accuracy of the representations and warranties of the Issuers herein at and as of such Time of Delivery, as to the performance by the Issuers of all their obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (g) and (h) of this Section 7 and as to such noticeother matters as you may reasonably request.
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 Issuer and the Guarantors contained herein (or the accuracy in all material respects with respect to any representation or warranty on the part of the Issuer and the Guarantors which has no materiality qualification) as of the Closing Date, to the accuracy of the statements of the Issuer and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Issuer and each of the Guarantors of its obligations hereunder, to the due execution and delivery of the Indenture, to the absence of any event or condition which would give the Purchasers the right to terminate this Agreement and to the following additional conditions:
(a) Each Purchaser's obligation to purchase TSC Shares is subject The Final Prospectus, and any supplement thereto, will be filed in the manner required by Rule 424(b) on or before the Closing Date in the form furnished to the fulfillment on or Purchasers and/or their legal advisors prior to the date hereof hereof; and any other material required to be filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Issuer shall not have received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the conditions set forth in this Section 6.1(a)automatic shelf registration statement form and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission.
(1b) The Issuer shall have furnished to the Purchasers and/or their legal advisors the opinion of W▇▇▇▇ & Case LLP, counsel to the Issuer and Guarantors, dated the Closing Date, in form and substance satisfactory to the Purchasers.
(c) The Issuer shall have furnished to the Purchasers and/or their legal advisors a certificate of the Issuer, signed by the Chief Financial Officer of the Issuer, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Final Prospectus and any supplements or amendments to any of the foregoing and this Agreement and that:
(i) the representations and warranties made by TSC of the Issuer and the Guarantors in Section 4, when read together with the Disclosure Letter, shall be this Agreement are true and correct in all material respects when made.
(2) The TSC Shares shall have been approved for listing on NASDAQ.
(3) TSC shall have entered into a Registration Rights Agreement, substantially in the form of Exhibit C (the "TSC Registration Rights Agreement").
(4) Purchasers shall have received an opinion of Sidley & Austin substantially in the form attached to Exhibit D-1.
(v) Purchasers shall have received a copy of TSC's Restated Certificate of Incorporation certified and as of a recent date by the Secretary of State Closing Date and the Issuer and each of the State of Delaware.
(vi) Purchasers shall have received a certificate of good standing issued as of a recent date by Guarantors has complied with all the Secretary of State of agreements and satisfied all the State of Delaware and the Secretary of State of the State of Illinois.
(vii) Purchasers shall have received a certificate of the secretary of TSC, dated as of a recent date, as conditions on its part to (i) no amendments to the Restated Certificate of Incorporation of TSC since a specified date, (ii) the By-laws of TSC, (iii) the resolutions adopted by the Board of Directors of TSC authorizing the execution and performance of this Agreement and the transactions contemplated hereby and (iv) incumbency and signatures of the officers of TSC executing this Agreement and any ancillary agreement. Notwithstanding the failure of any one be performed or more of the foregoing conditions, each Purchaser may proceed with the purchase of the TSC Shares without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver. To the extent that on satisfied at or prior to the execution Closing Date;
(ii) condition in paragraph (f) below has been satisfied; and
(iii) no stop order suspending the effectiveness of this Agreement TSC delivers the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Issuer’s knowledge, threatened.
(d) Prior to the Closing Date, the Issuer shall have furnished to the Purchasers a written notice specifying and/or their legal advisors such further information, certificates and documents as the Purchasers may reasonably request.
(e) Prior to, or simultaneously with, the Closing Date, the Exchange Transactions (as defined in reasonable detail the failure Transaction Support Agreement) shall have been successfully completed in accordance with the terms and conditions set forth in the Transaction Support Agreement.
(f) Since the date of the Commitment Agreements, there shall not have occurred any Material Adverse Effect.
(g) The Securities shall be eligible for clearance and settlement through the facilities of such conditions or the breach by TSC of DTC. If any of the representations conditions specified in this Section 3 shall not have been fulfilled in all material respects when and as provided in this Agreement, or warranties of TSC herein, and nevertheless such Purchaser proceeds with the purchase if any of the TSC Sharesopinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Requisite Consenting Parties, this Agreement and all obligations of the Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Requisite Consenting Parties and such Purchaser cancellation shall be deemed to have waived for all purposes any rights or remedies it may have against the Sellers by reason of the failure without liability of any such conditions or the breach of party to any such representations or warranties other party, except to the extent described provided in Section 7. Notice of such noticecancellation shall be given to the Issuer in writing.
Appears in 1 contract