Conditions of Initial Purchaser' Obligations. The obligations of the Initial Purchaser hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations and warranties of Merger Corp. and the Company contained herein, to the accuracy of the statements of the Company and its officers made in any certificates delivered pursuant hereto, to the performance by Merger Corp. and the Company of its obligations hereunder, and to each of the following additional terms and conditions: (a) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchaser as promptly as practicable on or following the date of this Agreement or at such other date and time as to which the Initial Purchaser may agree; and no stop order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (b) On the date thereof, the Offering Memorandum (or any amendment of supplement thereto) did not, and on the Closing Date the Offering Memorandum (or any amendment or supplement thereto) shall not contain an untrue statement of a fact which, in the reasonable opinion of counsel for the Initial Purchaser, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the 22 22 Initial Purchaser, and the Company shall have furnished to the Initial Purchaser all documents and information that they or its counsel may reasonably request to enable them to pass upon such matters. (d) Each of Paul, Xxiss, Rifkind, Wharxxx & Xarrxxxx xxx Tripxxxx, Woolx & Xarrxxxxx xxxll have furnished to the Initial Purchaser their written opinions, as counsel to Merger Corp. and the Company, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex B-1 and B-2 respectively, hereto. (e) The Initial Purchaser shall have received from Simpxxx Xxxxxxx & Bartxxxx, xxunsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Initial Purchaser two letters (the "Initial Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the date hereof, in form and substance satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex C and D hereto. (g) The Company shall have furnished to the Initial Purchaser two letters (the "Bring-Down Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down Letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letters), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letters are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letters. (h) The Company shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that (A) such officers have carefully examined the 23 23 Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C) to the best of such officer's knowledge after reasonable investigation as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date, and subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been no material adverse change in the financial position or results of operation of the Company, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, except as set forth in the Offering Memorandum. (i) The Initial Purchaser shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company. (j) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee. (k) The Securities shall have been approved by the NASD for trading in the PORTAL Market. (l) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchaser shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchaser reasonably in advance of the Closing Date. (m) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation 24 24 under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, hold or effect resales of the Securities as contemplated hereby. (n) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, the effect of which, in any such case described above, is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (exclusive of any amendment or supplement thereto). (o) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities. (p) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Securities or any of the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its rating of the Securities or any of the Company's other debt securities or preferred stock. (q) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities 25 25 of the Company on any exchange or in the over-the-counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by federal or New York state authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or (iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Securities on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto). (r) The transactions contemplated by the Recapitalization, as defined in the Offering Memorandum, shall have been consummated. (s) The Initial Purchaser shall have received on the Closing Date a counterpart to this Agreement executed by the Company. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (NBC Acquisition Corp), Purchase Agreement (Nebraska Book Co)
Conditions of Initial Purchaser' Obligations. The obligations of the Initial Purchaser hereunder are subject subject, in its discretion, to the accuracy, on and as of the date hereof and at the Closing DateTime, of the representations and warranties of Merger Corp. and the Company Persons contained herein, to the accuracy of the statements of the Company Persons and its their respective officers made in any certificates delivered pursuant hereto, to the performance by Merger Corp. and the Company Persons of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments amendment or supplements supplement thereto) shall have been printed and copies distributed to the Initial Purchaser as promptly as practicable on or following the date of this Agreement (or at such other date and time as to which the Initial Purchaser may agree; and no stop order suspending ). If any event shall have occurred that requires the sale of Company under Section 5(c) hereof to prepare an amendment or supplement to the Securities in any jurisdiction Offering Memorandum, such amendment or supplement shall have been issued and no proceeding for that purpose prepared, the Initial Purchaser shall have been commenced or given a reasonable opportunity to comment thereon, and copies thereof shall be pending or threatenedhave been delivered to the Initial Purchaser reasonably in advance of the Closing Date.
(b) On No Law shall have been, or shall have been proposed to be, enacted, adopted or issued, and no Order shall have been, or shall have been proposed to be, issued, which would suspend or prevent the date thereofissuance, authentication, offer, sale, resale or delivery of the Securities or the Exchange Securities or the use of the Offering Memorandum in any jurisdiction, in each case, as contemplated by this Agreement and the Offering Memorandum.
(c) There shall not have occurred any invalidation of Rule 144A, Regulation S or Regulation D under the Securities Act by any court or any amendment withdrawal or proposed withdrawal of supplement thereto) did not, and on any rule or regulation under the Closing Date Securities Act or the Offering Memorandum (Exchange Act by the Commission or any amendment or supplement theretoproposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, hold or effect resales of the Securities contemplated hereby.
(d) shall not contain an untrue statement of a fact whichEach Transaction Document, in the reasonable opinion of counsel for form and substance satisfactory to the Initial Purchaser, is material or omits shall have been duly executed and delivered by an authorized officer of each party thereto, and shall have been delivered to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingInitial Purchaser.
(ce) The Notes, in form and substance satisfactory to the Initial Purchaser, shall have been duly executed and delivered by an authorized officer of the Company and duly authenticated by an authorized officer of the Trustee.
(f) The Securities shall have been approved by the NASD for trading in the PORTAL Market.
(g) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and each of the other Transaction Documents and the Offering Memorandum, and all other legal matters relating to this Agreement and the other Transaction Documents and the transactions contemplated therebyhereby and thereby (including the Refinancing Transaction), shall be reasonably satisfactory in all material respects to the 22 22 Initial Purchaser, and the Company shall have furnished to the Initial Purchaser all documents and information that they it or its counsel may reasonably request to enable them such counsel to pass upon such matters.
(dh) Each The Initial Purchaser shall not have either discovered or disclosed to the Company prior to the Closing Time that the Offering Memorandum (or any amendment or supplement thereto) (i) contains an untrue statement of Paula fact which, Xxiss, Rifkind, Wharxxx & Xarrxxxx xxx Tripxxxx, Woolx & Xarrxxxxx xxxll have furnished to in the opinion of the Initial Purchaser their written opinionsor its counsel, as is material or (ii) omits to state any fact which, in the opinion of the Initial Purchaser or such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) The Initial Purchaser shall have received from each of (i) Cox Smith Matthews Incorporated, counsel to Merger Corp. and for the Company, and (ii) Xrxxx Xaxx XXX, special New York counsel for the Company, a written xxxxxxx, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex B-1 and B-2 respectively, hereto.
(ej) The Initial Purchaser shall have received from Simpxxx Xxxxxxx Sidley Austin Brown & BartxxxxWood LLP, xxunsel counsel for the Initial Purchaser, such opinion or opinionsoxxxxxx xx xxinixxx, dated the Closing Date, with respect to such matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents and information as they may request for the purpose of enabling them to pass upon such matters.
(fk) The Company shall have furnished to the Initial Purchaser two letters (the "Initial Letters"), one of Deloitte & Touche LLP BDO Seidman and one of Arthxx Xxxexxxx XXXD&T, addressed to the Initial Purchaser and Purchaser, dated the date hereofdaxx xxxxof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex C and D hereto.
(gl) The Company shall have furnished to the Initial Purchaser two letters (of DeGolyer and MacNaughton and McDaniel and Associates Consultantx Xxx., addresxxx xx xxx Initiax Xxxxxxser, dated the "Bring-Down Letters")date hereof and the Closing Date, one of Deloitte & Touche LLP in form and one of Arthxx Xxxexxxx XXX, addressed substance reasonably satisfactory to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down Letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letters), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letters are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial LettersPurchaser.
(hm) The Company shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that (Ai) such officers have carefully examined the 23 23 Offering Memorandum, (Bii) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which that should have been set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and misleading, (Ciii) to the best of such officer's knowledge after reasonable investigation as of the Closing Date, the representations and warranties of the Company Persons in this Agreement were true and correct on the date hereof and are true and correct in all material respectsrespects as of the Closing Time, (iv) the Company has Persons have complied in all material respects with all agreements and satisfied all conditions on its their part to be performed or satisfied hereunder on or prior to the Closing Date, Time in all material respects and (v) subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been no material adverse change in the financial position or results of operation of the Companycondition, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operationsor in the earnings, business affairs, management or business prospects of the CompanyCompany and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, except as set forth in the Offering Memorandum.
(in) The Initial Purchaser Each Company Person shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company.
(j) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading in the PORTAL Market.
(l) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchaser shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered furnished to the Initial Purchaser a certificate of its secretary or assistant secretary, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser.
(o) Each Company Person shall have furnished to the Initial Purchaser (i) a certificate of good standing from the state in which it is incorporated and from each other state or other jurisdiction in which the failure to be in good standing could reasonably be expected to have a Material Adverse Effect, each dated no more than seven days prior to the Closing Date, and (ii) a bring-down letter of good standing from CT Corporation System (or another similar service) with respect to the Company and each Guarantor in advance each such state or other jurisdiction, dated as of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation 24 24 under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, hold or effect resales of the Securities as contemplated hereby.
(np) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective change, change in or affecting the condition (condition, financial or otherwise), results of operationsearnings, business affairs, management or business prospects of the CompanyCompany and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, the effect of which, in any such case described above, is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(oq) No action The Company shall have:
(i) notified the Existing Notes Indenture Trustee and the paying agent under the Existing Notes Indenture of its intention to redeem all of the Existing Notes in accordance with Section 3.01 of the Existing Notes Indenture, and each such notice shall be in form and substance satisfactory to the Initial Purchaser and shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of given not less than five (5) days nor more than thirty (30) days prior to the Closing Date which would prevent (unless the issuance or sale of the Securities.
(p) Subsequent to the execution and delivery of this Agreement (i) no downgrading Existing Notes Indenture Trustee shall have occurred agreed in the rating accorded the Securities writing to a shorter notice period or any of the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as waived such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and notice);
(ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of furnished a possible upgrading), its rating of letter from the Securities or any of the Company's other debt securities or preferred stock.
(q) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities 25 25 of the Company on any exchange or in the over-the-counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by federal or New York state authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or (iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of whichExisting Notes Indenture Trustee, in the case of this clause (iv), is, in the judgment of form and substance satisfactory to the Initial Purchaser, so material and adverse as (A) confirming the amount (the "Existing Notes Payout Amount") required to make it impracticable or inadvisable to proceed be deposited with the sale or the delivery Existing Notes Indenture Trustee pursuant to clauses (a)(ii) and (b) of Section 8.01 of the Securities Existing Notes Indenture assuming the Company redeems all of the Existing Notes on the terms and in thirtieth (30th) day (or if such day is not a business day, the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(rnext succeeding business day) The transactions contemplated by the Recapitalization, as defined in the Offering Memorandum, shall have been consummated.
(s) The Initial Purchaser shall have received on following the Closing Date and the Company incurs no amounts referred to in such clause (b) after the Closing Date and (B) agreeing to provide the acknowledgment referenced in clause (ii) of Section 5(t) hereof upon its receipt of the Existing Notes Payout Amount and satisfaction of the other conditions in Section 8.05 of the Existing Notes Indenture; and
(iii) delivered a counterpart to this Agreement executed by the Company. All opinionsnotice of redemption, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser., to the Existing Notes Indenture Trustee and irrevocably instructed the Existing Notes Indenture Trustee to mail such notice of redemption to each holder of the Existing Notes in accordance with
Appears in 1 contract
Conditions of Initial Purchaser' Obligations. The obligations of the Initial Purchaser hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations and warranties of Merger Corp. and the Company contained herein, to the accuracy of the statements of the Company and its officers made in any certificates delivered pursuant hereto, to the performance by Merger Corp. and the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchaser as promptly as practicable on or following the date of this Agreement or at such other date and time as to which the Initial Purchaser may agree; and no stop order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(b) On the date thereof, the Offering Memorandum (or any amendment of supplement thereto) did not, and on the Closing Date the Offering Memorandum (or any amendment or supplement thereto) shall not contain an untrue statement of a fact which, in the reasonable opinion of counsel for the Initial Purchaser, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the 22 22 Initial Purchaser, and the Company shall have furnished to the Initial Purchaser all documents and information that they or its counsel may reasonably request to enable them to pass upon such matters.
(d) Each of Paul, Xxiss, Rifkind, Wharxxx & Xarrxxxx xxx Tripxxxx, Woolx & Xarrxxxxx xxxll have furnished to the Initial Purchaser their written opinions, as counsel to Merger Corp. and the Company, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, 23 23 substantially to the effect set forth in Annex B-1 and B-2 B-2, respectively, hereto.
(e) The Initial Purchaser shall have received from Simpxxx Xxxxxxx & Bartxxxx, xxunsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchaser two letters (the "Initial Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the date hereof, in form and substance satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex C and D hereto.
(g) The Company shall have furnished to the Initial Purchaser two letters (the "Bring-Down Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down Letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letters), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letters are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letters.
(h) The Company shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that (A) such officers have carefully examined the 23 23 Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit 24 24 to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C) to the best of such officer's knowledge after reasonable investigation as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date, and subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been no material adverse change in the financial position or results of operation of the CompanyCompany or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the CompanyCompany and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum.
(i) The Initial Purchaser shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company.
(j) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading in the PORTAL Market.
(l) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchaser shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchaser reasonably in advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation 24 24 under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, hold or effect resales of the Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information 25 25 is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the CompanyCompany and its subsidiaries taken as a whole, the effect of which, in any such case described above, is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(p) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Securities or any of the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its rating of the Securities or any of the Company's other debt securities or preferred stock.
(q) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities 25 25 of the Company on any exchange or in the over-the-counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by federal or New York state authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or (iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Securities on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(r) The transactions contemplated by the Recapitalization, as defined in the Offering Memorandum, shall have been consummated.
(s) The Initial Purchaser shall have received on the Closing Date a counterpart to this Agreement executed by the Company. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser.
Appears in 1 contract
Conditions of Initial Purchaser' Obligations. The obligations of the Initial Purchaser hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, accuracy of the representations and warranties of Merger Corp. and on the Company contained herein, to the accuracy of the statements part of the Company on the date hereof and its officers made in any certificates delivered pursuant heretoat the Time of Purchase. Additionally, the obligations of the Initial Purchaser hereunder are subject to the performance by Merger Corp. and the Company of its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements thereto) Company shall have been printed and copies distributed furnish to the Initial Purchaser as promptly as practicable on or following at the Time of Purchase an opinion of its General Counsel, addressed to the Initial Purchaser and dated the date of this Agreement or at such other date and time as to which the Initial Purchaser may agree; and no stop order suspending Time of Purchase, substantially in the sale of the Securities form set forth in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.Exhibit A hereto;
(b) On the date thereof, the Offering Memorandum (or any amendment of supplement thereto) did not, and on the Closing Date the Offering Memorandum (or any amendment or supplement thereto) shall not contain an untrue statement of a fact which, in the reasonable opinion of counsel for the Initial Purchaser, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the 22 22 Initial Purchaser, and the The Company shall have furnished furnish to the Initial Purchaser all documents and information that they or its at the Time of Purchase an opinion of Jxxxx Day, counsel may reasonably request to enable them to pass upon such matters.
(d) Each of Paul, Xxiss, Rifkind, Wharxxx & Xarrxxxx xxx Tripxxxx, Woolx & Xarrxxxxx xxxll have furnished to the Initial Purchaser their written opinions, as counsel to Merger Corp. and for the Company, addressed to the Initial Purchaser and dated the Closing Datedate of the Time of Purchase, substantially in the form set forth in Exhibit B hereto;
(c) The Initial Purchaser shall have received on the date of this Agreement and at the Time of Purchase from Ernst & Young LLP customary comfort letters dated as of the date of this Agreement and the date of the Time of Purchase and addressed to the Initial Purchaser, in form and substance satisfactory to counsel for the Initial Purchaser;
(d) The Initial Purchaser shall have received at the Time of Purchase the opinion of counsel for the Initial Purchaser, dated the date of the Time of Purchase, in form and substance reasonably satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex B-1 and B-2 respectively, hereto.;
(e) The Initial Purchaser No amendment or supplement to the Disclosure Package or the Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in the Disclosure Package or the Final Memorandum, shall at any time have received from Simpxxx Xxxxxxx & Bartxxxx, xxunsel for the Initial Purchaser, such opinion been made or opinions, dated the Closing Date, with respect filed to such matters as which the Initial Purchaser may has reasonably require, and the Company shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.objected in writing;
(f) The Company shall have furnished to At the Initial Purchaser two letters (Time of Purchase, neither the "Initial Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to Disclosure Package nor the Initial Purchaser and dated the date hereofFinal Memorandum, in form and substance satisfactory to each case when read in conjunction with the Initial PurchaserMay 3 Release, substantially to the effect set forth in Annex C and D hereto.
(g) The Company shall have furnished to the Initial Purchaser two letters (the "Bring-Down Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down Letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letters), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letters are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letters.
(h) The Company shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that (A) such officers have carefully examined the 23 23 Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of its date, did not include any contain an untrue statement of a material fact and did not or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since ;
(g) Between the date time of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement execution of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C) to the best of such officer's knowledge after reasonable investigation as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respectsthe Time of Purchase, the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date, and subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been (i) no material adverse change in the financial position or results of operation of the Company, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, except as set forth in the Offering Memorandum.
(i) The Initial Purchaser shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company.
(j) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading in the PORTAL Market.
(l) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchaser shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchaser reasonably in advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation 24 24 under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, hold or effect resales of the Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective changematerial adverse change in the business, in prospects, properties, management, financial condition or affecting the condition (financial or otherwise), results of operations, business or prospects operations of the Company, the effect of which, in any such case described above, is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement Company and the Offering Memorandum (exclusive of any amendment Subsidiaries, taken as a whole shall occur or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(p) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Securities or any of the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act become known and (ii) no such organization shall have publicly announced that it has under surveillance or review transaction which is material and unfavorable to the Company (other than an announcement with positive implications of a possible upgrading), its rating of as disclosed in the Securities Disclosure Package and the Final Memorandum) shall have been entered into by the Company or any of the Company's other debt securities or preferred stock.Subsidiaries;
(qh) Subsequent The Company will at the Time of Purchase deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer in the form attached as Exhibit C hereto;
(i) You shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and the Indenture;
(j) Each executive officer and director of the Company shall have entered into Lock-Up Agreements in the form attached as Exhibit D hereto on or prior to the date hereof, and each such Lock-Up Agreement shall have been delivered to you and shall be in full force and effect at the Time of Purchase;
(k) The Company shall have furnished to you such other documents and certificates, including documents and certificates as to the accuracy and completeness of any statement in the Disclosure Package and the Final Memorandum as of the Time of Purchase, as you may reasonably request;
(l) The Bonds shall have been designated for trading on PORTAL, subject only to notice of issuance at or prior to the Time of Purchase; and
(m) Between the time of execution and delivery of this Agreement and the Time of Purchase, there shall not have occurred any downgrading, nor shall any notice have been given of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange any intended or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities 25 25 of the Company on any exchange or in the over-the-counter market shall have been suspended potential downgrading or (ii) any moratorium on commercial banking activities shall have been declared by federal review or New York state authorities or (iii) possible change that does not indicate an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or (iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of whichimprovement, in the case rating accorded any securities of this clause (iv), is, in or guaranteed by the judgment Company or any Subsidiary of the Initial PurchaserCompany by any “nationally recognized statistical rating organization”, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of that term is defined in Rule 436(g)(2) promulgated under the Securities on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto)Act.
(r) The transactions contemplated by the Recapitalization, as defined in the Offering Memorandum, shall have been consummated.
(s) The Initial Purchaser shall have received on the Closing Date a counterpart to this Agreement executed by the Company. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser.
Appears in 1 contract
Conditions of Initial Purchaser' Obligations. The obligations of the ------------------------------------------- Initial Purchaser hereunder are to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to the accuracy, on and as satisfaction of the date hereof and the Closing Date, following conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of Merger Corp. the Issuer contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the Company contained hereindate of this Agreement and, in each case after giving effect to the accuracy transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuer shall have performed or complied with all of the statements of the Company agreements and its officers made covenants contained in any certificates delivered pursuant hereto, this Agreement and required to be performed or complied with by it at or prior to the performance by Merger Corp. and the Company of its obligations hereunder, and to each of the following additional terms and conditions:Closing Date.
(ab) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchaser as promptly as practicable on or the day following the date of this Agreement or at such other later date and time as to which the Initial Purchaser may agree; and no determine. No stop order suspending the sale qualification or exemption from qualification of the Securities Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(b) On the date thereof, the Offering Memorandum (or any amendment of supplement thereto) did not, and on the Closing Date the Offering Memorandum (or any amendment or supplement thereto) shall not contain an untrue statement of a fact which, in the reasonable opinion of counsel for the Initial Purchaser, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the 22 22 Initial Purchaser, and the Company shall have furnished to the Initial Purchaser all documents and information that they or its counsel may reasonably request to enable them to pass upon such matters.
(d) Each of Paul, Xxiss, Rifkind, Wharxxx & Xarrxxxx xxx Tripxxxx, Woolx & Xarrxxxxx xxxll have furnished to the Initial Purchaser their written opinions, as counsel to Merger Corp. and the Company, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex B-1 and B-2 respectively, hereto.
(e) The Initial Purchaser shall have received from Simpxxx Xxxxxxx & Bartxxxx, xxunsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchaser two letters (the "Initial Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the date hereof, in form and substance satisfactory to the Initial Purchaser, substantially to the effect set forth in Annex C and D hereto.
(g) The Company shall have furnished to the Initial Purchaser two letters (the "Bring-Down Letters"), one of Deloitte & Touche LLP and one of Arthxx Xxxexxxx XXX, addressed to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down Letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letters), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letters are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letters.
(h) The Company shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that (A) such officers have carefully examined the 23 23 Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C) to the best of such officer's knowledge after reasonable investigation as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date, and subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been no material adverse change in the financial position or results of operation of the Company, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, except as set forth in the Offering Memorandum.
(i) The Initial Purchaser shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company.
(j) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading in the PORTAL Market.
(l) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchaser shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchaser reasonably in advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation 24 24 under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, hold or effect resales of the Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, the effect of which, in any such case described above, is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which that would, as of the Closing Date, prevent the issuance or sale of the SecuritiesOriginal Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuer, threatened against the Issuer and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would reasonably be expected to have a Material Adverse Effect; and no injunctionstop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, restraining or any amendment or supplement thereto, or any order or order asserting that any of any other nature the transactions contemplated by any federal or state court this Agreement are subject to the registration requirements of competent jurisdiction the Act shall have been issued issued.
(d) As of December 31, 2000, neither the Issuer nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Issuer's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since December 31, 2000, except as set forth or contemplated in the Offering Memorandum, (a) neither the Issuer nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Issuer and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Issuer on any class of its capital stock.
(e) The Initial Purchaser shall have received certificates, dated the Closing Date, signed by two authorized officers of the Issuer and the Subsidiaries confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Initial Purchaser shall have received on the Closing Date opinions (satisfactory in form and substance to the Initial Purchaser) dated the Closing Date, addressed to the Initial Purchaser, of Xxxxxxx, Carton & Xxxxxxx and Xxxxxx & Xxxxxx, counsel to the Issuer.
(g) The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchaser) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser.
(h) The Initial Purchaser shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Ernst & Young LLP, independent public accountants for the Issuer, dated the date of this Agreement, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. In addition, the Initial Purchaser shall have received "bring-down comfort letters" from each of Pricewaterhouse- Coopers LLP and Ernst & Young LLP, dated as of the Closing Date, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.
(i) The Issuer shall have entered into the Indenture and the Initial Purchaser shall have received copies, conformed as executed, thereof.
(j) The Issuer shall have received and countersigned the Commitment Letter and to the knowledge of the Issuer such Commitment Letter shall be in full force and effect as of the Closing Date which would prevent and the issuance or sale of the SecuritiesInitial Purchaser shall have received counterparts, conformed as executed, thereof.
(pk) Subsequent to the execution and delivery of this Agreement (i) no downgrading The Issuer shall have occurred in entered into the rating accorded Registration Rights Agreement and the Securities or any of the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization Initial Purchaser shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading)received counterparts, its rating of the Securities or any of the Company's other debt securities or preferred stockconformed as executed, thereof.
(ql) Subsequent to The Issuer shall have notified the execution and delivery of this Agreement there shall not have occurred any lenders under the Issuer's credit agreement dated June 14, 1996, as amended (as in effect on the date hereof), of the following: (i) trading in securities generally on Issuer's intention to pay all obligations with respect thereto with a portion of the New York Stock Exchange, proceeds of the American Stock Exchange or Original Notes and simultaneously with the over-the-counter market issuance of the Original Notes all such obligations shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market be paid by the CommissionIssuer in full. Upon such payment, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities 25 25 of the Company on any exchange or in the over-the-counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by federal or New York state authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or (iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States credit agreement shall be such) the effect of which, terminated in the case of this clause (iv), is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed accordance with the sale or the delivery of the Securities on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto)thereof.
(r) The transactions contemplated by the Recapitalization, as defined in the Offering Memorandum, shall have been consummated.
(sm) The Initial Purchaser shall have received on the Closing Date a counterpart certificate from the Issuer dated the Closing Date as to the solvency of the Issuer and the Subsidiaries, addressed to the Initial Purchaser.
(n) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement executed and the performance of the Issuer's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(o) The Initial Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as they may reasonably request.
(p) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(q) All the requirements relating to the approval of the Notes by Euroclear and Clearstream for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Company. All opinionsInitial Pur- chaser), letters, evidence and certificates mentioned above or elsewhere in this Agreement may be terminated by the Initial Purchaser on notice to the Issuer at any time at or prior to the Closing Date, and such termination shall be deemed without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect. The documents required to be in compliance with delivered by this Section 8 will be delivered at the provisions hereof only if they are in form and substance reasonably satisfactory to office of counsel for the Initial PurchaserPurchaser on the Closing Date.
Appears in 1 contract
