Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions: (a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date. (b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed. (c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in a change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum. (d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following: (i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and (ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P., counsel for the Company, to the effect that: (i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; (ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification; (iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights; (iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien; (v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (x) the Series B Notes have been duly authorized; (xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and Riviera Holdings contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the financial condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a wholeCompany, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock equity interests or in the long-term debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries shall not have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i10(c)(i), 9(c)(ii10(c)(ii) or 9(c)(iii10(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You shall have received on the Closing Date (xA) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, Company (i) stating that the representations and warranties of the Company contained in this Agreement are true and correct with the same force and effect as if made on and as of the Closing Date; (ii) confirming the matters set forth in Sections 6(w)(i)-(iii), 9(aclause 10(b) and 9(b10(c) hereof and (iii) stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required on its part to be complied with performed or satisfied on at or prior to the Closing Date and (yB) a certificate of dated the Closing Date, signed by the President and the Chief Compliance Financial Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
Riviera Holdings (i) neither stating that the Company nor any representations and warranties of its Subsidiaries has violated any provisions Riviera Holdings contained in this Agreement are true and correct with the same force and effect as if made on and as of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse EffectClosing Date; and
(ii) each of confirming the Company matters set forth in clause 10(b) and its Subsidiaries (i10(c) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws hereof and (iiiii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance stating that Riviera Holdings has complied with all the terms agreements and satisfied all conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority on its part to be performed or governing body) which allows or, after notice satisfied at or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome prior to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.Closing Date
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Dechert Price & Xxxxxxxx L.L.P.Xxxxxx, counsel for the Company, to substantially the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws form of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Exhibit C hereto.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, in the case of Initial Notes, or on the Option Closing Date, in the case of Additional Notes, in each case with the same force and effect as if made on and as of the Closing Datesuch date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) Date, in the case of Initial Notes, or on the Option Closing Date, in the case of Additional Notes, a certificate dated the Closing Dateas of such date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) You shall have received on the Closing Date Date, in the case of Initial Notes, and on the Option Closing Date, in the case of Additional Notes, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Dateas of such date, of Fulbright Willkie Farr & Xxxxxxxx L.L.P.Gallagher, counsel for the Companycounxxx xxx xxx Comxxxx, to xx the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and its Significant Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Significant Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, owned by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) this Agreement has been duly authorized, executed and delivered by the Series A Company;
(vi) the Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, valid execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z) to provisions relating to indemnities or contribution, as to each of which such counsel need express no opinion;
(vii) the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this AgreementAgreement and the Indenture, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability, as to each of which such counsel need express no opinion;
(viviii) the Registration Rights Agreement has been duly authorized, executed and delivered by the Company had and, assuming the corporate rightdue authorization, power valid execution and authority to execute and deliver delivery by each of the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement Initial Purchasers, is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
applicability and (viiiz) this Agreement has been duly authorizedto provisions relating to indemnities or contribution, executed and delivered by the Companyas to each of which such counsel need express no opinion;
(ix) The Registration Rights Agreement has the shares of Common Stock initially issuable upon conversion of the Notes in accordance with the Indenture have been duly authorizedauthorized and reserved for issuance upon such conversion and, executed and delivered when issued upon such conversion, will be validly issued by the Company and is a valid and binding agreement of the Company, enforceable against fully paid and nonassessable; and the stockholders of the Company in accordance have no preemptive rights under the Company's certificate of incorporation with its terms, except as (x) respect to the enforceability thereof may be limited by bankruptcy, insolvency Notes or similar laws affecting creditors' rights generally and (y) rights the shares of acceleration and Common Stock issuable upon conversion of the availability of equitable remedies may be limited by equitable principles of general applicabilityNotes;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions,Description of Credit Facility" "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
(xi) the execution, delivery and performance of this Agreement and the other Operative Documents by the Company, the compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states and, with respect to the Registration Statement, as required under the Act, the Exchange Act and the TIA), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, (a) the charter or by-laws of the Company or any of its Significant Subsidiaries or (b) any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its Significant Subsidiaries or their respective property, or (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries or their respective property is bound, except, with respect to clauses (i), (ii) (b), (iii) and (iv), as would not result in a Material Adverse Effect;
(xii) to the best of such counsel's knowledge, neither the Company nor any of its Significant Subsidiaries is in violation of its respective charter or by-laws;
(xiii) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its Significant Subsidiaries is or could be a party or to which any of their respective property is or could be subject, which is reasonably likely to result, singly or in the aggregate, in a Material Adverse Effect;
(xiv) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the net proceeds thereof as described in the Offering Memorandum, will not be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended;
(xv) to the best of such counsel's knowledge except as disclosed in the Offering Memorandum, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the Company to include such securities with the Notes registered pursuant to any Registration Statement;
(xvi) the Indenture complies as to form in all material respects with the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder except that the Indenture will not be so qualified. It is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Indenture under the TIA;
(xvii) no registration under the Act of the Notes is required for the sale of the Notes to the Initial Purchasers as contemplated by this Agreement or for the Exempt Resales assuming that (i) each Initial Purchaser is a QIB, an Accredited Institution or a Regulation S Purchaser, (ii) the accuracy of, and compliance with, the Initial Purchasers' representations and agreements contained in Section 7 of this Agreement, (iii) the compliance with, and accuracy of, the agreements and representations of the Company set forth in Sections 5(h) and (m) and 6(ee), (ff), (gg), (hh), (ii), (jj) and (kk) of this Agreement and (iv) with respect to Accredited Institutions, the accuracy of the representations made by each such Accredited Institution as set forth in the letter of representation executed by such Accredited Institution in the form of Annex A to the Offering Memorandum. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent certified public accountants of the Company and the Initial Purchasers at which the contents of the Preliminary Offering Memorandum and the Offering Memorandum and any amendment thereof or supplement thereto and related matters were discussed and, although such counsel has not undertaken to investigate or verify independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Preliminary Offering Memorandum and the Offering Memorandum or any amendment thereof or supplement thereto, on the basis of the foregoing (relying as to materiality to the extent such counsel has deemed appropriate upon the opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel that would lead them to believe that the Offering Memorandum as of its date or as of the date hereof, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that in each such case such counsel expresses no belief or opinion with respect to the financial statements and schedules and other financial or statistical data included therein). The opinion of Willkie Farr & Gallagher descrixxx xx Xxxxxon 0(x) xxxxe shall be rendered to you at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date, in the case of Initial Notes, or on the Option Closing Date, in the case of Additional Notes, an opinion, dated as of such date, of Latham & Watkins, counsel for xxx Xxitixx Xxxxhasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this Agreement is executed and at the Closing Date and Option Closing Date, letters dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from Deloitte & Touche LLP, independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company.
(k) The Company shall have received from BankBoston, N.A., and from each lender under the Company's Fourth Amended and Restated Loan Agreement dated as of June 30, 1997, an irrevocable consent to the offering of the Notes and shall deliver a copy of such consent to the Initial Purchasers.
(l) The Company shall not have failed at or prior to the Closing Date, in the case of Initial Notes, or at or prior to the Option Closing Date, in the case of Additional Notes, to perform or comply in any material respect with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date or the Option Closing Date, as the case may be.
Appears in 1 contract
Samples: Purchase Agreement (Fine Host Corp)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Senior Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) ), by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization organization, and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Senior Notes than that on which the Senior Notes were marketed.
(c) The execution and delivery by the Company of the Term Loan Agreement providing for a new $150 million senior secured term loan and the drawdown of $150 million in term loans shall have been consummated in accordance with the Term Loan Agreement.
(d) The investment of $350 million by TPG in the Company shall have been consummated in accordance with the Investment Agreement.
(e) The purchase of $10 million of common stock of the Company by Dr. Xxxxxx X. Xxxxxx shall have been consummated.
(f) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in a change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;have
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Allied and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its Subsidiaries subsidiaries and (iii) neither the Company Allied nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(y), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Fried, Frank, Harris, Shriver & Xxxxxxxx L.L.P.Jacobson, counsel for the CompanyCompany and the Guxxxxxxxx, xx thx xxxxxt sxx xxxxx on Exhibit A attached hereto and an opinion of Steven Helm, Vice President and General Counsel of the Company to the effect that:xxxxxx xxx forth on Exhibit B attached hereto. In addition, you shall have received opinions (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of counsel to the Company and the Guarantors (satisfactory to you and counsel for the Initial Purchasers) as to such matters as you may reasonably request with respect to Guarantors organized outside the states of New York and Delaware which are identified as Significant Subsidiaries (within the meaning of Rule1-02 of Regulation 5-X under the Act) in an officer's certificate addressed to you and dated the Closing Date. The opinion of Fried, Frank, Harris, Shriver & Jacobson described in Section 9(e) abxxx xhaxx xx rxxxxxxd xx xxx at xxx xxxxest of the Company and the Guarantors and shall so state therein.
(if) The Initial Purchasers shall have received on the Company has been duly incorporatedClosing Date an opinion, dated the Closing Date, of Latham & Watkins, counsel for the Initial Purchasers, in form and subxxxxxx rexxxxxxxy satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this Agreement is validly existing as a corporation in good standing under executed and at the laws of its jurisdiction of incorporation and has Closing Date, letters dated the corporate power and authority to carry on its business as described in date hereof or the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Arthur Andersen LLP, independent public accountants, containing the ixxxxxxtxxx xxx statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Circular.
(h) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture, including all supplements thereto relating to the Series A Notes, which it is organized shall have been entered into by the Company, the Guarantors and the Trustee.
(j) The Company and the Guarantors shall have executed the Registration Rights Agreement, and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(k) The Company, BFI and the Grantor Subsidiaries shall have entered into the amendments to the Shared Collateral Agreements and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company, BFI and the Grantor Subsidiaries.
(l) Neither the Company nor the Guarantors shall have failed at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company or the Guarantors, as the case may be, at or prior to the Closing Date.
(m) The Company shall have amended the Credit Facility to: (i) permit the Company and has the power Guarantors to incur the debt under the Notes and authority the Guarantees and to carry on its business secure the Notes and Guarantees with the Collateral; (ii) change certain financial covenants; and (iii) provide for the reduction of the amount of available credit under the Company's $1.5 billion revolving credit facility by $200 million to $1.3 billion upon the satisfactory consummation of the American Ref-Fuel transaction (as described in the Preliminary Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Circular).
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries (including, for purposes of this subsection, the Deco Entities and Turn-Matic), taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or Company, any of its Subsidiaries subsidiaries, any of the Deco Entities or Turn-Matic and (iii) neither the Company nor any of its Subsidiaries subsidiaries, nor any Deco Entity or Turn-Matic shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Newcor Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of each of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers and the Subsidiary Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date., provided that the representations and warranties qualified by "materiality" shall be true and correct on the Closing Date;
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Issuers or any Subsidiary Guarantor or any securities of the Company Issuers or any Subsidiary Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuers or any Subsidiary Guarantor or any securities of the Company Issuers or any Subsidiary Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.;
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Partnership and its Subsidiariessubsidiaries and Leviathan Finance, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock stock, limited liability company interests or partnership units, as applicable, or in the long-term debt of the Company Issuers or any of its Subsidiaries their subsidiaries and (iii) neither the Company Issuers nor any of its Subsidiaries their subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.;
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyGeneral Partner and Leviathan Finance and each of the Subsidiary Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(cc), 9(a) and 9(b) and stating that each of the Company Issuers and the Subsidiary Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.Date;
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Akin, Gump, Strauss, Hauex & Xxxxxxxx L.L.P.Xeld, X.L.P., counsel for the CompanyIssuers and the Subsidiary Guarantors, to the effect that:
(i) each of the Company Partnership and its Restricted Subsidiaries and Leviathan Finance, as applicable, has been duly formed or incorporated, is validly existing as a limited partnership, corporation or limited liability company in good standing under the laws of its jurisdiction of formation or incorporation and has the partnership or corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company Partnership and its Restricted Subsidiaries and Leviathan Finance, as applicable, is duly qualified and, based solely on the various certificates from public officials of Texas and Louisiana (the "GOOD STANDING CERTIFICATES"), is in good standing as a foreign partnership, corporation or limited liability company authorized to do business in such jurisdictions, which are the only jurisdictions (other than offshore in the Gulf of Mexico) in which the businesses of the Partnership and such other entities or their respective ownership or leasing of property requires such qualification, except where the failure to be so qualified could reasonably be expected not to have a Material Adverse Effect;
(iii) the General Partner has been duly incorporated and is validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to carry on its businesses; to own, lease and operate its properties; and to act as the general partner of the Partnership in all material respects as described in the Preliminary Offering Memorandum and in the Offering Memorandum. The General Partner is duly qualified and, based solely on the Good Standing Certificates, is in good standing as a foreign corporation authorized to do business in each jurisdiction such jurisdictions, which are the only jurisdictions in which the nature business of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business General Partner or its ownership or leasing of property requires such qualification;
(iii) all , except where the outstanding shares of capital stock of the Company failure to be so qualified could reasonably be expected not to have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rightsa Material Adverse Effect;
(iv) all the General partner is, and after giving effect to the transactions (the "TRANSACTIONS") in the Offering Memorandum which are described under the caption "The Transactions," the General Partner is the sole general partner of the outstanding shares of capital stock, membership interests or partnership interests, as Partnership with a 1.0% general partner interest in the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any LienPartnership;
(v) the Series A Notes have been duly authorized by each of the Issuers and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the CompanyIssuers, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency or insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and remedies generally; (ii) general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity); (iii) commercial reasonableness and unconscionability and an implied covenant of good faith and fair dealing; (iv) the power of the courts to award damages in lieu of equitable remedies; and (yv) the limitations imposed by rights of acceleration to indemnification and the availability of equitable remedies contribution thereunder may be limited by equitable principles of general applicabilityFederal or state securities laws or public policy underlying such laws on any right to indemnification or contribution contained in the agreements (the "GENERAL EXCEPTIONS");
(vi) the Company had Guarantees have been duly authorized and, when the corporate rightSeries A Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanySubsidiary Guarantors, enforceable against the Company in accordance with its their terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityGeneral Exceptions;
(vii) the Indenture has been duly authorized, executed and delivered by each of the Company Issuers and each Subsidiary Guarantor and is a valid and binding agreement of each of the CompanyIssuers and each Subsidiary Guarantor, enforceable against each of the Company Issuers and each Subsidiary Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityGeneral Exceptions;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, or on the Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on the Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.the
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright & Xxxxxxxx L.L.P.Hale xxx Dorr, XXP, counsel for the Company, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on own its property and to conduct its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its propertiesMemorandum;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction The Commonwealth of Massachusetts and the State of California, which, to such counsel's knowledge, are the only states in which the nature of its business Company owns or its ownership or leasing of leases any real property requires such qualification except where in the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationUnited States;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, paid and non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rightsassessable;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, owned by the Company, to the knowledge of such counsel, free and clear of any LienLiens (it being understood that counsel acceptable to the Initial Purchasers may provide such opinion in lieu of Hale xxx Dorr XXX);
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by
(vi) the Indenture has been duly authorized, executed and delivered by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture Company and will be is a valid and binding obligations agreement of the Company, enforceable against the Company in accordance with their its terms except as (x) the enforceability thereof may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vivii) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company Notes are convertible into Common Stock in accordance with its the terms except as (a) of the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights Indenture; the shares of acceleration and Common Stock initially issuable upon conversion of the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has Notes have been duly authorizedauthorized and reserved for issuance upon such conversion and, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and when issued upon such conversion in accordance with its the terms except as (x) of the enforceability thereof may Notes, will be limited by bankruptcyvalidly issued, insolvency or similar laws affecting creditors' rights generally fully paid and (y) rights nonassessable; the issuance of acceleration the Notes, and the availability Common Stock issuable upon conversion thereof, will not be subject to any pre-emptive rights under the Delaware General Corporate Law, the certificate of equitable remedies may be limited incorporation or by-laws of the Company or, to such counsel's knowledge, similar rights granted by equitable principles of general applicabilitycontract;
(viii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Offering Memorandum;
(ix) this Agreement has been duly authorized, executed and delivered by the Company;
(ixx) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
applicability and (xz) except as to indemnification and contribution provisions under the Series B Notes have been duly authorizedRegistration Rights Agreement may be limited under applicable law;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Convertible Notes," "Description of Other IndebtednessCapital Stock," "Summary of Certain United States Federal Income Tax Consequences," "Plan of Distribution," "Notice to Investors," and in the first, second, third, fourth, sixth and seventh paragraphs of "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present summarize in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Senior Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantor contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or the Guarantor or any securities of the Company or the Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes Standard & Poor's Ratings Group, a division of Rule 436(g)(2) under the ActThe McGxxx-Xxxx Xxmpanies, Inc., or Mooxx'x Xxvestors Service, Inc., (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Senior Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii9(a), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y9(c) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effecthereof.
(e) You The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance reasonably satisfactory to you the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Skadden, Arps, Slate, Meaxxxx & Xxxxxxxx L.L.P.Flox XXP, counsel for the CompanyCompany and the Guarantor, as to the effect that:matters set forth in Exhibit B hereto and such additional matters or modifications as to which the parties hereto mutually agree.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Micxxxx Xxxx, Xsq., general counsel for the Company and the Guarantor, as to the matters set forth in Exhibit C hereto and such additional matters and modifications as to which the parties hereto mutually agree.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of special Pennsylvania counsel for the Company and the Guarantor, as to the matters set forth in Exhibit D hereto.
(h) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Latxxx & Watxxxx, counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(i) The Initial Purchasers shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from each of Artxxx Xndxxxxx X.L.P. and Deloitte & Touche LLP, independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in which it is organized or incorporated, as accountants' ?comfort letters? to the case may be, Initial Purchasers with respect to the financial statements and has the power and authority to carry on its business as described certain financial information contained in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Circular.
Appears in 1 contract
Samples: Purchase Agreement (Fields MRS Original Cookies Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes Senior Preferred Stock under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Act, Act and (ii) there shall not have occurred any change, nor shall any notice any
(c) The Initial Purchaser shall have been given of any potential or intended changereceived on the Closing Date a certificate dated the Closing Date, in signed by the outlook for any rating President and another executive officer of the Company or any securities Company, confirming, as of the Company by any such rating organization Closing Date, the matters set forth in paragraphs (a), (b), (e) (the first clause of which may be limited to the Company's knowledge) and (iiik) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketedof this Section 9.
(cd) Since the respective dates as of which information is given in the Offering Memorandum Memorandum, other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a wholeCompany, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or increase in the long-term debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries shall not have incurred any material liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i9(d)(i), 9(c)(ii9(d)(ii) or 9(c)(iii9(d)(iii), in your reasonable good faith judgment, is material and adverse and, in your reasonable good faith judgment, makes it impracticable to market the Series A Notes Senior Preferred Stock on the terms and in the manner contemplated in the Offering Memorandum.
(de) You No action shall have received on the Closing Date (x) a certificate dated been taken and no statute, rule, regulation or order shall have been enacted, adopted or issue by any governmental agency which would, as of the Closing Date, signed by prevent the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance issuance or sale of any of the CompanySeries A Senior Preferred Stock, confirming prevent the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each consummation of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with Transactions or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not otherwise have a Material Adverse Effect; and
(ii) each no action, suit or proceeding shall be pending against or, to the knowledge of the Company, threatened against, the Company and its Subsidiaries (i) has such Authorizations ofor Liberty Group Operating before any court or arbitrator or any governmental body, and has made all filings agency or official which would reasonably be expected to prohibit, interfere with and notices toor adversely affect the issuance or sale of the Senior Preferred Stock, all federal, state and foreign governments, governmental the consummation of the Acquisition or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, otherwise have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt stop order, injunction, restraining order, or order of any notice from any authority or governing body) which allows or, after notice or lapse nature preventing the use of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictionsor any amendment or supplement thereto, including, without limitation, net capital requirements, or any order asserting that any of the transactions contemplated by this Agreement are burdensome subject to the Company or any registration requirements of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, Act shall have a Material Adverse Effectbeen issued.
(ef) You On the Closing Date, the Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers)opinion, dated the Closing Date, of Fulbright Mayex, Xxowx & Xxxxxxxx L.L.P.Xlatx, counsel xxunsel for the Company, substantially to the effect that:
(i1) the The Company has been duly incorporatedorganized, is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the full corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;,
(ii2) the The Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification is required, except where the failure to be so qualified or in good standing would not be reasonably expected to have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;.
(iii3) all All of the outstanding shares of capital stock of the Company have (i) has been duly authorized and validly issued and are (ii) is fully paid, non-assessable nonassessable and, to the knowledge of such counsel's knowledge, not subject to any preemptive or similar rights;. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Offering Memorandum.
(iv4) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this This Agreement has been duly authorized, executed and delivered by the Company;.
(ix5) The Registration Rights Agreement Series A Senior Preferred Stock has been duly authorized by the Company, and when issued in accordance with the provisions of the Certificate of Designations and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Series A Senior Preferred Stock will be duly authorized and validly issued, fully paid, nonassessable and, to such counsel's knowledge, not subject to any preemptive or similar rights.
(6) The Exchange Senior Preferred Stock has been duly authorized by the Company, and when executed and authenticated in accordance with the provisions of the Certificate of Designations and delivered in exchange for Series A Senior Preferred Stock in accordance with the Certificate of Designations and the Exchange Offer, the Exchange Senior Preferred Stock will be duly authorized and validly issued, fully paid, nonassessable and, to such counsel's knowledge, not subject to any preemptive or similar rights.
(7) The Exchange Indenture has been duly authorized, executed and delivered by the Company Company, and assuming the due authorization, execution and delivery of the Exchange Indenture by the Trustee, the Exchange Indenture is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except (i) as (x) the enforceability thereof may be limited by bankruptcy, insolvency fraudulent
(8) Upon issuance of the Exchange Debentures, the Exchange Debentures will be valid and binding obligations of the Company, entitled to the benefits of the Exchange Indenture and enforceable against the Company in accordance with their terms, except (i) as the enforceability thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, (ii) for general principles of equity (regardless of whether enforcement is brought in a proceeding at law or in equity) and (iii) the waiver as to stay, extension or usury laws may not be enforceable.
(9) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company, and assuming the due authorization, execution and delivery of the Registration Rights Agreement by the Initial Purchaser, the Registration Rights Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except (i) as the enforceability thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, (ii) for general principles of equity (regardless of whether enforcement is brought in a proceeding at law or in equity) and (iii) no opinion need be expressed as to the validity, binding nature or enforceability of any rights to contribution or indemnification contained in the Registration Rights Agreement.
(10) The Asset Purchase Agreements have been duly authorized by the Company and Liberty Group Operating and, on the Closing Date, will have been duly executed and delivered by the Company and Liberty Group Operating and will be valid and binding agreements of the Company and Liberty Group Operating, enforceable against the Company and Liberty Group Operating in accordance with their terms (assuming the due execution and delivery of the Asset Purchase Agreements by each other party thereto) except (i) as the enforceability thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and (yii) rights of acceleration and the availability of equitable remedies may be limited by equitable for general principles of general applicability;equity (regardless of whether enforcement is brought in a proceeding at law or in equity).
(x11) The statements in the Series B Notes have been duly authorized;
(xi) the statements Offering Memorandum under the captions "BusinessSummary--Pending AcquisitionsThe Acquisition," "--Operations--NYSE Rules Governing Our Specialist ActivitiesCertain Relationships and Related Transactions," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesThe Acquisition," "Description of Senior Subordinated NotesDebentures," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan Description of DistributionHoldings' Capital Stock" (other than statements and under the caption "The Offering" in the "Plan of Distribution" furnished to supplement describing the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering MemorandumSenior Preferred Stock, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present summarize in all material respects the information called for with respect to such legal matters, documents and proceedings;.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions; provided, that, satisfaction of the condition in paragraph (l) below may not be waived by the Initial Purchasers without the Company's consent:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects respects, except for those representations and warranties of the Company and the Guarantors which are qualified as to materiality, which representations and warranties shall be true and correct in all respects, on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice PresidentChief Financial Officer (or if there is no Chief Financial Officer, Finance the Treasurer) of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(ab), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Olshan Grundman Xxxxx & Xxxxxxxx L.L.P.Xxxxxxxeig LLP, counsel for xxxxxxx xxr the CompanyCompany and the Guarantors, to the effect that:
(i) each of the Company and its Restricted Subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and its Restricted Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification or license, except where the failure to be so qualified or licensed would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries direct and indirect subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, owned by the Company, to the knowledge of such counsel, free and clear of any Lien, except as set forth in Schedule C-3 hereto;
(v) the Series A Senior Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration acceleration, if applicable, and the availability of equitable or other remedies or other may be limited by equitable principles of general applicability;
(vi) the Company had Subsidiary Guarantees have been duly authorized and, when the corporate rightSeries A Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the Subsidiary Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against the Company in accordance with its their terms except as (ax) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration acceleration, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration acceleration, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and the Guarantors;
(ix) The the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as (x) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(x) the Term Loan Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration acceleration, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(xxi) the Series B Senior Notes have been duly authorized;
(xixii) the Intercreditor, Indemnification and Subordination Agreement has been duly authorized, executed and delivered by each of WHX, Unimast, the Company and WPSC and is a valid and binding agreement of each party thereto in accordance with its terms, except as (x) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(xiii) the Tax Sharing Agreement has been duly authorized, executed and delivered by each of WHX and the Company and is a valid and binding agreement of each party thereto in accordance with its terms, except as (x) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(xiv) the statements under the captions "Business--Pending AcquisitionsRisk Factors-Significant Outstanding Indebtedness of The Company," "--Operations--NYSE Rules Governing Our Specialist ActivitiesRisk Factors-Cross-default Provisions," "Risk Factors-Obligations to Joint Ventures" "Risk Factors- Substantial Employee Post Retirement Obligations," "Fraudulent Conveyance; Possible Invalidity of Subsidiary Guarantees" "Business- Legal Proceedings-Environmental Matters," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees-Legal Proceedings-General Litigation," "Description of Senior Subordinated Notes," "Description of Other Principal Indebtedness," "Certain United States Federal Income Tax Consequences, "Description of Receivables Facility" and "Plan of DistributionIndemnification and Intercreditor Agreement" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Senior Discount Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any material adverse change, nor shall any notice have been given of any potential or intended material adverse change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, 22 management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgmentthe judgment of the Initial Purchaser, is so material and adverse and, in your reasonable judgment, makes as to make it impracticable to market the Series A Senior Discount Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchaser shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iiiSection s 6(y), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchaser shall have received on the Closing Date an opinion the opinions (satisfactory to you the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright each of (i) Skadden, Arps, Slate, Meagxxx & Xxxxxxxx L.L.P.Xlom XXX, special counsel for the Company, in substantially the form attached hereto as Annex A and (ii) Skadden, Arps, Slate, Meagxxx & Xlom XXX, as special French counsel for the Company, in substantially the form attached hereto as Annex B.
(f) The Initial Purchaser shall have received on the Closing Date an opinion, dated the Closing Date, of Lathxx & Xatkxxx, xxunsel for the Initial Purchaser, in form and substance reasonably satisfactory to the effect that:Initial Purchaser.
(ig) The Initial Purchaser shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchaser from Arthxx Xxxexxxx, X.L.P., independent public accountants for the Company and Coopers & Lybrxxx X.X.P., independent public accountants for Anchor, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchaser with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Senior Discount Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchaser shall have received a counterpart, conformed as executed, of the Indenture which it is organized shall have been entered into by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights Agreement and the Initial Purchaser shall have received an original copy thereof, duly 23 executed by the Company.
(k) The Company shall not have failed at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business at or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, prior to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the --------------------------------------------- Initial Purchasers to purchase the Series A Restricted Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any adverse change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, or Master Graphics, Inc. and its subsidiaries, taken as a whole, (ii) there shall not have been any material adverse change or any development which could reasonably be expected to result in involving a prospective material adverse change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries the Guarantors and (iii) neither the Company nor any of its Subsidiaries the Guarantors shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Secretary of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(x), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Baker, Xxxxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.Xxxxxxxx, counsel for the CompanyCompany and the Guarantors, to the effect that:
(i) each of the Company and the Guarantors has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and the Guarantors is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, or application has been made and is pending except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company and each of the Guarantors have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each stock of the Company's Subsidiaries have been duly authorized Company and validly issued and Harperprints, Inc. are fully paid and non-assessableowned by Master Graphics, and are owned, directly or indirectly, by the Company, to the knowledge of such counselInc., free and clear of any LienLien other than the security interests of General Electric Capital Corporation and Deutsche Financial Services Corporation and the right of Xxxxxxx Xxxxxx to reacquire the common stock of Harperprints, Inc. upon the occurrence of certain events. The Company and Harperprints, Inc. are the only subsidiaries of Master Graphics, Inc.;
(v) each of the Series A Company and the Guarantors have the corporate power and authority to perform the obligations under this Agreement, the Indenture, the Notes, the Guarantees and the Registration Rights Agreement;
(vi) the Restricted Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vivii) the Company had guarantees of each Guarantor have been duly authorized and, when the corporate rightRestricted Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against the Company in accordance with its their terms except as (ax) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiviii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiix) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and each of the Guarantors;
(ixx) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xxi) the Series B Exchange Notes have been duly authorized;
(xixii) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesRisk Factors," "Description of Senior Subordinated Notes, " "Certain Federal Income Tax Considerations," "Description of Other Indebtedness," "Certain United States Federal Income Tax ConsequencesERISA Considerations" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(ee), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright of, Xxxxx Xxxx & Xxxxxxxx L.L.P., counsel for the Company, to the effect that:
(i) each of the Company and its United States subsidiaries (Brand Scaffold Builders, Inc. and Brand Scaffold Rental & Erection, Inc., the "SUBSIDIARIES") has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to Company is the knowledge registered owner of such counsel, free and clear of any Lien;shares.
(viii) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) subject to the enforceability thereof may be limited by effect of bankruptcy, insolvency insolvency, fraudulent conveyance or similar laws affecting creditors' rights generally and (y) equitable principles of general applicability and except that rights of acceleration and the availability of equitable remedies to indemnity or contribution may be limited by equitable principles of general applicabilityapplicable law (as to which such counsel is not required to express an opinion);
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiv) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) subject to the enforceability thereof may be limited by effect of bankruptcy, insolvency insolvency, fraudulent conveyance or similar laws affecting creditors' rights generally and (y) equitable principles of general applicability and except that rights of acceleration and the availability of equitable remedies to indemnity or contribution may be limited by equitable principles of general applicabilityapplicable law (as to which such counsel is not required to express an opinion);
(viiiv) this Agreement has been duly authorized, executed and delivered by the Company;
(ixvi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) subject to the enforceability thereof may be limited by effect of bankruptcy, insolvency insolvency, fraudulent conveyance or similar laws affecting creditors' rights generally and (y) equitable principles of general applicability and except that rights of acceleration and the availability of equitable remedies to indemnity or contribution may be limited by equitable principles of general applicabilityapplicable law (as to which such counsel is not required to express an opinion);
(xvii) the Series B Senior Notes have been duly authorizedauthorized by the Company;
(xiviii) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesDescription of Bank Facility," "Description of Senior Subordinated NotesPreferred Stock," "Description of Other IndebtednessNotes," "Certain United States Federal Income Tax ConsequencesNotice to Investors" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement Securities hereunder are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of At the Closing Date.
(b) On , the Securities shall be rated at least Baa2 by Moodx'x xxx BBB by each of Standard & Poor's and Duff & Phelxx, and the Company shall have delivered to the Initial Purchasers a letter dated the Closing Date, from each such rating agency, or after other evidence satisfactory to the Initial Purchasers, confirming that the Securities have such ratings; and since the date hereofof the Agreement, (i) there shall not have occurred any downgrading, suspension a downgrading in the rating assigned to the Securities or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) Company's other securities by any "nationally recognized statistical rating organizationagency," as such that term is defined by the Commission for purposes of Rule 436(g)(2436 (g)(2) under the Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of the Securities or any of the Company's other securities.
(iib) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, nor shall or any notice have been given of any potential or intended development involving a prospective change, in or affecting the outlook for any rating condition (financial or other), business, prospects, properties, net worth, or results of operations of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a whole, not contemplated by the Memorandum, which in your opinion, as Initial Purchasers, would materially, adversely affect the market for the Securities, or (ii) there shall not have been any change event or any development which could reasonably be expected relating to result in a change in the capital stock or in the long-term debt of involving the Company or any officer or director of its Subsidiaries and (iii) neither the Company nor which makes any of its Subsidiaries shall have incurred statement made in the Memorandum untrue in any liability material respect or obligation, direct or contingent, the effect of which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Memorandum in order to state a material fact required by the Act or any other law to be stated therein or necessary in
(c) You shall have received on the Closing Date an opinion of Perkxxx Xxxe LLP, counsel for the Company, dated the Closing Date and addressed to you, as Initial Purchasers, substantially in the form of Annex A hereto. In rendering their opinion as aforesaid, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of Washington, provided that (1) each such case described in clause 9(c)(i)local counsel is acceptable to you, 9(c)(ii(2) or 9(c)(iii)such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to you and is, in your reasonable judgmentform and substance satisfactory to them and their counsel, is material and adverse and, (3) counsel shall state in your reasonable judgment, makes it impracticable to market their opinion that they believe that they and the Series A Notes on the terms and Initial Purchasers are justified in the manner contemplated in the Offering Memorandumrelying thereon.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and of King & Spalding, counsel for the Initial Purchasers), dated the Closing DateDate and addressed to you, of Fulbright & Xxxxxxxx L.L.P.as Initial Purchasers, counsel for the Company, with respect to the effect that:
matters referred to in clause (i12) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," in the Memorandum entitled "Description of Senior Subordinated the Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the Exchange Offer; Registration Rights"Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;; clauses
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of each of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers and the Subsidiary Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date., provided that the representations and warranties qualified by "materiality" shall be true and correct on the Closing Date;
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Issuers or any Subsidiary Guarantor or any securities of the Company Issuers or any Subsidiary Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuers or any Subsidiary Guarantor or any securities of the Company Issuers or any Subsidiary Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.;
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Partnership and its Subsidiariessubsidiaries and El Paso Finance, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock stock, limited liability company interests or partnership units, as applicable, or in the long-term debt of the Company Issuers or any of its Subsidiaries their subsidiaries and (iii) neither the Company Issuers nor any of its Subsidiaries their subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.Circular;
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyGeneral Partner and El Paso Finance and each of the Subsidiary Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(ee), 9(a) and 9(b) and stating that each of the Company Issuers and the Subsidiary Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.Date;
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Akin, Xxmp, Xxraxxx, Xxuex & Xxxxxxxx L.L.P.Xeld, X.L.P., counsel for the CompanyIssuers and the Subsidiary Guarantors, to the effect that:
(i) Each of the Company Partnership and its Restricted Subsidiaries and El Paso Finance, as applicable, has been duly incorporated, formed or incorporated and is validly existing as a limited partnership, corporation or limited liability company in good standing under the laws of its jurisdiction of formation or incorporation and has the partnership, corporate or limited liability company power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum Circular and to own, lease and operate its properties;
(ii) Each of the Company Partnership and its Restricted Subsidiaries (other than general partnerships) and El Paso Finance, as applicable, is duly qualified or registered to do business as a foreign limited partnership, corporation or limited liability company, as the case may be, and, based solely on the various certificates from public officials of Texas, Louisiana and Alabama (the "Good Standing Certificates"), is in good standing as a foreign limited partnership, corporation or limited liability company authorized to do business in the respective jurisdictions listed on Schedule C hereto, which are the only jurisdictions (other than offshore in the Gulf of Mexico) in which the businesses of the Partnership, its Restricted Subsidiaries and El Paso Finance or their respective ownership or leasing of property requires such qualification, except where the failure to be so qualified could reasonably be expected not to have a Material Adverse Effect;
(iii) The General Partner has been duly incorporated and is validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to carry on its businesses; to own, lease and operate its properties; and to act as the general partner of the Partnership in all material respects as described in the Preliminary Offering Circular and in the Offering Circular. The General Partner is duly qualified and, based solely on the Good Standing Certificates, is in good standing as a foreign corporation authorized to do business in each jurisdiction such jurisdictions, which are the only jurisdictions (other than offshore in the Gulf of Mexico) in which the nature business of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business General Partner or its ownership or leasing of property requires such qualification;
(iii) all , except where the outstanding shares of capital stock of the Company failure to be so qualified could reasonably be expected not to have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rightsa Material Adverse Effect;
(iv) all The General Partner is, and after giving effect to the transactions (the "Transactions"), which are described in the Offering Circular under the caption "The Transactions," the General Partner will be the sole general partner of the outstanding shares of capital stock, membership interests or partnership interests, as Partnership with a 1.0% general partner interest in the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any LienPartnership;
(v) the Series A Notes have been duly authorized by each of the Issuers and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the CompanyIssuers, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency or insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and remedies generally; (ii) general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity); (iii) commercial reasonableness and unconscionability and an implied covenant of good faith and fair dealing; (iv) the power of the courts to award damages in lieu of equitable remedies; and (yv) the limitations imposed by rights of acceleration to indemnification and the availability of equitable remedies contribution thereunder may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency Federal or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;state securities
Appears in 1 contract
Samples: Purchase Agreement (El Paso Energy Partners Deepwater LLC)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Senior Subordinated Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers and the Subsidiary Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Issuers or any Subsidiary Guarantor or any securities of the Company Issuers or any Subsidiary Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuers or any securities of the Company Subsidiary Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Memorandum, other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a material adverse change in the condition, financial or otherwise, or the earnings, business, management management, prospects (viewed as of the Closing Date) or operations of the Company Issuers and its Subsidiariestheir subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in a material adverse change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries Issuers and their subsidiaries, taken as a whole, and (iii) neither the Company Issuers nor any of its Subsidiaries their subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Senior Subordinated Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Presidents and the Chief Executive Officer and President and by the Executive Vice President, Finance Financial Officers of the CompanyIssuers, confirming the matters set forth in Sections 6(w)(i)-(iii9(a), 9(a9(b) and 9(b9(c) and stating that each of the Company Issuers and the Subsidiary Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx L.L.P.Xxxxxxxx, special U.S. counsel for the CompanyIssuers and the Subsidiary Guarantors, to the effect that:
(i) (1) each of the Company Issuers, (2) each of Grove U.S. LLC, Grove Finance LLC and Crane Acquisition Corp. (collectively, the "New Subsidiaries") and (3) each of Crane Holding Inc. and National Crane Corp. (collectively, the "Existing Subsidiaries") has been duly incorporatedincorporated or organized, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, limited liability company (as the case may be), and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized State of Delaware and has the corporate power or incorporated, limited liability company power (as the case may be, and has the power and authority ) to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company Issuers and the New Subsidiaries and the Existing Subsidiaries is duly qualified and is in good standing as a foreign corporation limited liability company or corporation, as applicable, authorized to do business in each jurisdiction in which the nature of listed opposite its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationname on Schedule I hereto;
(iii) all the outstanding shares of capital stock of the Company Issuers have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Senior Subordinated Notes have been duly authorized and, when executed executed, issued and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Senior Subordinated Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the CompanyIssuers, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability whether asserted in law or in equity;
(viiv) each of the Company had New Subsidiaries has duly authorized the corporate right, power and authority Subsidiary Guarantee to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement which it is a party and, when the Senior Subordinated Notes are issued and authenticated in accordance with the terms of the Indenture, such Subsidiary Guarantee endorsed thereon will be entitled to the benefits of the Indenture and will be the legally valid and binding agreement obligation of the Companysuch New Subsidiary, enforceable against the Company such New Subsidiary in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcyterms, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability whether asserted in law or in equity;
(viiiv) this Agreement has been the Issuers have duly authorizedauthorized the New Senior Subordinated Notes and, executed when the New Senior Subordinated Notes are issued and delivered by authenticated in accordance with the Company;
(ix) The Registration Rights Agreement has been duly authorizedterms of the Registered Exchange Offer and the Indenture, executed and delivered by the Company and is a New Senior Subordinated Notes will be the legally valid and binding agreement obligations of the CompanyIssuers, enforceable against the Company Issuers in accordance with its terms, their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability whether asserted in law or in equity;
(vi) each of the New Subsidiaries has duly authorized the Subsidiary Guarantee to which it is a party, to be endorsed on the New Senior Subordinated Notes and, when the New Senior Subordinated Notes are issued and authenticated in accordance with the terms of the Registered Exchange Offer and the Indenture, the Subsidiary Guarantee endorsed thereon will be entitled to the benefits of the Indenture and will be the legally valid and binding obligation of such New Subsidiary, enforceable against such New Subsidiary in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability whether asserted in law or in equity;
(vii) the Indenture has been duly authorized, executed and delivered by the Issuers and the New Subsidiaries and is a valid and binding agreement of the Issuers and the New Subsidiaries, enforceable against the Issuers and the New Subsidiaries in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability whether asserted in law or in equity;
(viii) this Agreement has been duly authorized, executed and delivered by the Issuers and the New Subsidiaries;
(ix) the Registration Rights Agreement has been duly authorized, executed and delivered by the Issuers and the New Subsidiaries and is a valid and binding agreement of the Issuers and the New Subsidiaries, enforceable against the Issuers and the New Subsidiaries in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability whether asserted in action at law or in equity and (z) indemnification or contribution provisions may be held to be enforceable;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," Description of Notes"--Operations--NYSE Rules Governing Our Specialist Activities," , `Transactions", "Business--Regulatory Environmental Matters,", "Business--Legal Proceedings", "Certain Relationships and Related Transactions" "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes,Certain Indebtedness" "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements refer to matters arising under or governed by Applicable Law (as hereinafter defined), and constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
(xi) such counsel is of the opinion ascribed to it in the Offering Memorandum under the caption "United States Federal Tax Considerations for Non-United States Holders";
(xii) based on current provisions of the Internal Revenue Code of 1986, as amended, applicable regulations promulgated by the Department of Treasury, and the current administrative and judicial interpretations thereof, each of the Company, Grove U.S. LLC and Grove Finance LLC, has been properly treated either as (x) a partnership or (y) not as an entity separate from its sole member for all periods of its existence and should not have been treated as an "association" taxable as a corporation; no assurance can be given that changes in applicable law, regulations or administrative rulings, procedures or announcements, or that judicial decisions would not adversely affect the classification of such entities for federal income tax purposes.
(xiii) to such counsel's knowledge, neither the Issuers nor any of the New Subsidiaries (i) are in violation of its respective charter or by-laws or (ii) are in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of the Issuers or the New Subsidiaries are a party or by which any of the Issuers or the New Subsidiaries or their respective properties are bound, which indenture, loan agreement, mortgage, lease or other agreement or instrument is material to the Issuers or the New Subsidiaries, taken as a whole, and would be required to be filed as an exhibit to a registration statement of the Company on Form S-1 covering this offering of the Senior Subordinated Notes;
(xiv) except as described in the Offering Memorandum, the execution, delivery and performance of this Agreement and the other Operative Documents by the Issuers and the New Subsidiaries and compliance by the Issuers and the New Subsidiaries with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency of the United States or the State of New York or under the Limited Liability Company Act of the State of Delaware (the "DLLC Act") or the Delaware General Corporation Law (together with the DLLC Act, the "Delaware Laws") (except such as may be required under the securities or Blue Sky laws of the various states),
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Company, any Guarantor, or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the financial condition, financial or otherwise, or the earnings, business, management or operations of (a) the Company and its SubsidiariesCompany, (b) RBH or (c) the Guarantors, other than RBH, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in a change in the capital stock equity interests or in the long-term debt of the Company or any of its Subsidiaries Guarantor and (iii) neither the Company nor any of its Subsidiaries and the Guarantors shall not have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, Company (i) stating that the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct with the same force and effect as if made on and as of the Closing Date; (ii) confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and clause 9(b) and 9(c) hereof and (iii) stating that each of the Company has and the Guarantors have complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required on their part to be complied with performed or satisfied on at or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Gordon & Xxxxxxxx L.L.P.Silver Ltd., counsel coxxxxx for the Company, substantially the form of Exhibit C hereto.
(f) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date, of Robinson, Waters & O'Dorisxx, Xxxxrado counsex xxx xxx Company, substantially the form of Exhibit D hereto.
(g) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date, of Schreck Brignone Godfrey, Xxxxxa xxxxxxx xxx xxx Company, substantially the form of Exhibit E hereto.
(h) You shall have received on the Closing Date an opinion, dated the Closing Date, of Latham & Watkins, counsex xxx the Xxxxxal Purchaser, in form and substance reasonably satisfactory to the effect that:Initial Purchaser.
(i) You shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchaser from Deloitte & Touche LLP, independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in which it is organized or incorporated, as accountants' "comfort letters" to the case may be, Initial Purchaser with respect to the financial statements and has the power and authority to carry on its business as described certain financial information contained in the Offering Memorandum Circular.
(j) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(k) The Company and each Guarantor shall each have executed and delivered the Operative Documents to ownwhich each is a party and the Initial Purchaser shall have received fully executed copies thereof. The Operative Documents shall be in full force and effect, lease with the exception of the Series B Notes and operate its properties;the Series B Guarantees, which will not be issued or become effective until the Exchange Offer. The Company and each Guarantor shall have received the requisite governmental and regulatory approval in connection with each of the Operative Documents and transactions contemplated by the Offering Circular to be completed on or before the Closing Date.
(l) Neither the Company nor any Guarantor shall have failed at or prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company or any Guarantor at or prior to the Closing Date.
(m) The Trustee shall have received (i) a certificate of insurance demonstrating insurance coverages of types, in amounts, with insurers and with other terms required by the terms of the Operative Documents and (ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, executed copies of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered UCC-1 financing statement signed by the Company and is a valid each Guarantor, as applicable, naming the Trustee as secured party and binding agreement filed in such jurisdictions as the Initial Purchaser may reasonably require.
(n) All documents and agreements shall have been filed, and other actions shall have been taken, as may be required to perfect the Security Interests of the CompanyTrustee in the Collateral, enforceable against and to accord the Trustee the priorities over other creditors of the Company and in accordance with its terms except the Guarantors as (x) contemplated by the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration Offering Circular and the availability of equitable remedies may be limited by equitable principles of general applicability;Operative Documents.
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ixo) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Trustee shall have received irrevocable commitments for title insurance from Nevada Title Company, enforceable against in a form and substance reasonably satisfactory to the Company in accordance with its termsInitial Purchaser, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements subject only to Liens permitted under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Indenture.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes Units under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.;
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company either Issuer or any Guarantor or any securities of the Company Issuers or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any adverse change, nor shall any notice have been given of any potential or intended adverse change, in the outlook for any rating of the Company either Issuer or any Guarantor or any securities of the Company Issuers or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes Units than that on which the Notes Units were marketed.;
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Issuers, the Guarantors, and its Subsidiariestheir respective subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of either Issuer, the Company Guarantors or any of its Subsidiaries their respective subsidiaries and (iii) neither none of the Company nor Issuers, the Guarantors or any of its Subsidiaries their respective subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Initial Securities on the terms and in the manner contemplated in the Offering Memorandum.;
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyIssuers and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(ff), 9(a) and 9(b) and stating that each of the Company Issuers and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.Date;
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P.Greexxxxx Xxxurig, P.A., counsel for the CompanyIssuers and the Guarantors, to the effect that:;
(i) each of the Company Issuers and the Guarantors has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company Issuers and the Guarantors is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries RailAmerica have been duly authorized and validly issued and are fully paid and non-assessablenonassessable and were not issued in violation of any preemptive or similar rights expressly created by law or the certificate of incorporation or bylaws (or similar organizational documents) of RailAmerica; to such counsel's knowledge, and all outstanding shares of capital stock of the Company are owned, directly or indirectly, by RailAmerica. RailAmerica has the Companyauthorized and to such counsel's knowledge issued and outstanding capitalization set forth in the Offering Memorandum under the heading "Capitalization" and "Description of Capital Stock";
(iv) the Warrants are in the form contemplated by the Warrant Agreement and, when issued, authenticated and delivered by RailAmerica against payment by the Initial Purchasers in accordance with the terms of this Agreement and the Warrant Agreement, will constitute valid and legally binding obligations of RailAmerica, entitled to the knowledge benefits of such counselthe Warrant Agreement and enforceable against RailAmerica in accordance with their terms, free except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and clear (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants, the Warrant Shares will be duly authorized, validly issued, fully paid and nonassessable and will not be subject to any Lienpreemptive or similar rights expressly created by law or the certificate of incorporation or by-laws of RailAmerica;
(v) all of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and to such counsel's knowledge are owned directly or indirectly by the Company;
(vi) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vivii) the Company had Guarantees have been duly authorized and, when the corporate rightSeries A Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against the Company in accordance with its their terms except as (ax) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiviii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiix) this the Warrant Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company RailAmerica and is a valid and binding agreement of the CompanyRailAmerica, enforceable against the Company RailAmerica in accordance with its terms, terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) this Agreement has been duly authorized, executed and delivered by the Issuers and the Guarantors;
(xi) the Notes Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z) any rights to indemnification or contribution thereunder may be limited by federal and state securities laws and public policy considerations;
(xii) the Warrant Registration Rights Agreement has been duly authorized, executed and delivered by RailAmerica and is a valid and binding agreement of RailAmerica, enforceable against RailAmerica in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (z) any rights to indemnification or contribution thereunder may be limited by federal and state securities laws and public policy considerations;
(xiii) the Series B Notes have been duly authorized;
(xixiv) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesDescription of the Units," "Description of Senior Subordinated the Notes," "Description of Other Indebtednessthe Warrants," "Certain United States Federal Income Tax ConsequencesDescription of Capital Stock," and "Plan of Distribution" (other than statements in the and "Plan of DistributionBusiness - Regulation" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (West Texas & Lubbock Railroad Co Inc)
Conditions of Initial Purchasers’ Obligations. The obligations --------------------------------------------- of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a1) All the representations and warranties of the Company Panolam Parties contained in this Agreement shall be true and correct in all material respects on the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b2) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c3) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreementthereto), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations opera- tions of the Company Company, the Subsidiary Guarantors and its Subsidiariestheir respective subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-long- term debt of the Company Company, any Guarantor or any of its Subsidiaries their respective subsidiaries and (iii) neither none of the Company nor Company, the Guarantors or any of its Subsidiaries their respective subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable the Initial Purchasers' judgment, is material and adverse and, in your reasonable the Initial Purchasers' judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d4) You The Initial Purchasers shall have received on the Closing Date (xi) a certificate dated the Closing Date, signed by the Chairman, President (or Chief Executive Officer) and the Chief Financial Officer and President and by the Executive Vice President, Finance (or principal financial or accounting officer) of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that the Company and each of the Company Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date Date; and (yii) a certificate of dated the Closing Date, signed by the President (or Chief Compliance Executive Officer) and Chief Financial Officer of the Company (or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(iprincipal financial or accounting officer) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company Guarantors, stating that the industry, statistical and its Subsidiaries is market- related data included in compliance with all the terms Offering Memorandum has been reviewed by such persons and, to the best knowledge of such persons, subject to the risks and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as limitations described in the Preliminary Offering Memorandum and the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to is true and accurate in all material respects and is based on or derived from sources which the Company or any of its Subsidiaries; except where such failure and the Guarantors believe to be valid reliable and in full force and effect or to accurate, which certificate shall be in compliance, form and substance satisfactory to counsel for the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectInitial Purchasers.
(e5) You The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Xxxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.Xxxxxxxx, LLP, counsel for the CompanyCompany and the Guarantors, to the effect that:
(i1) each of the Company has been duly incorporatedCompany, the Guarantors and their respective subsidiaries, other than the Canadian Subsidiary, is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the corporate power and corporate authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business properties as described in the Offering Memorandum and to own, lease and operate its propertiesMemorandum;
(ii2) each of the Company and the Guarantors is duly qualified and is in good standing as a foreign corporation authorized to do business as follows: (a) the Company in each jurisdiction Connecticut; (b) Panolam in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse EffectConnecticut; (c) PII Second, Inc. in Connecticut; (d) Panolam Industries, Inc. in Connecticut, Oregon and each of its Subsidiaries is duly qualified Georgia; and is (e) Pioneer in good standing California, Georgia, Indiana, Maine and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;Tennessee.
(iii3) all the outstanding shares of capital stock of Holdings, the Company Company, the Guarantors and their respective subsidiaries, other than the Canadian Subsidiary, have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, and not subject to any preemptive or similar rights, other than as described in the Offering Memorandum;
(iv4) all the entities listed on Schedule D hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries have been duly authorized and validly issued and subsidiaries are fully paid and non-assessable, and are owned, owned directly or indirectly, indirectly by the Company, to the knowledge of such counsel, Company free and clear of any Lien;, other than the pledge of such shares to secure the obligations under the New Credit Agreements. All of the outstanding shares of capital stock of the Company are owned directly by PII Second free and clear of any Lien, other than the pledge of such shares to secure the obligations under the New Credit Agreements. All of the outstanding shares of capital stock of PII Second are owned directly by Panolam free and clear of any Lien, other than the pledge of such shares to secure the obligations under the New Credit Agreements. All of the outstanding shares of capital stock of Panolam are owned directly by Holdings free and clear of any Lien, other than the pledge of such shares to secure the obligations under the New Credit Agreements.
(v5) the issuance and sale of the Series A Notes by the Company have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as (x) the enforceability thereof may be limited by (x) bankruptcy, insolvency fraudulent transfer, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability (regardless of whether enforceability is considered at equity or in law);
(vi6) the Company had issuance and sale of the corporate rightGuarantees have been duly authorized by the Guarantors and, power when the Series A Notes are executed and authority authenticated in accordance with the provisions of the Indenture and delivered to execute and deliver paid for by the Xxxxxxxxx Acquisition Agreement Initial Purchasers in accordance with the terms of this Agreement, the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against the Company Guarantors in accordance with its their terms except as (a) the enforceability thereof may be limited by (x) bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability (regardless of whether enforceability is considered at equity or in law);
(vii7) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming the due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by (x) bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability (regardless of whether enforceability is considered at equity or in law);
(viii) 8) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and the Guarantors;
(ix9) The the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and, assuming the due authorization, execution and delivery by the Initial Purchasers, is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except (A) as (x) the enforceability thereof may be limited by (x) bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors' rights generally and (y) equitable principles of general applicability (regardless of whether enforceability is considered at equity or in law) (B) any rights of acceleration and the availability of equitable remedies to indemnity or contribution thereunder may be limited by equitable principles federal and state securities laws and public policy considerations, and (C) such counsel need express no opinion with respect to Section 5 of general applicabilitythe Registration Rights Agreement;
(x10) the Series B Senior Notes have been duly authorizedauthorized by the Company;
(xi11) the statements under the captions "Business--Pending AcquisitionsThe Transactions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Management-Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees-1996 Option Plan," "Certain Transactions," "Description of Senior Subordinated NotesCertain Indebtedness," "Description of Other Indebtedness," "Certain United States Federal Income Tax ConsequencesNotes" and "Plan of Distribution" (other than statements in the "Plan not including any portion of Distribution" furnished to the Company this section provided by the Initial Purchasers, as Purchasers pursuant to which no opinion is renderedSection 6(a)) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, provisions of such documents or proceedings referred to described therein, fairly present summarize the provisions of such documents. The statements under the caption "Certain United States Federal Income Tax Considerations to Non-U.S. Holders," insofar as they purport to describe the provisions of the Federal income tax laws described therein, fairly summarize such laws in all material respects such legal matters, documents and proceedingsrespects;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of --------------------------------------------- the Initial Purchasers Purchaser to purchase the Series A Senior Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-long- term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Senior Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii9(a), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect9(c).
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Faegre & Xxxxxxxx L.L.P.Xxxxxx LLP, counsel for the CompanyCompany and the Guarantors, to the effect that:
(i) each of the Company and the Guarantors has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporatedproperties (which opinion, as the case may beto Guarantors that are not incorporated in Minnesota, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in based solely on good standing under certificates received from the laws Secretaries of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its propertiesState of such Guarantors' respective states of incorporation);
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, and not subject to any preemptive or similar rightsrights known to such counsel;
(iviii) the Company, either directly or through one or more subsidiaries, is the record owner of all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any LienGuarantors;
(viv) the Series A Senior Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as terms;
(xv) the enforceability thereof may Subsidiary Guarantees have been duly authorized and, when the Senior Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Subsidiary Guarantees endorsed thereon will be limited by bankruptcyentitled to the benefits of the Indenture and will be valid and binding obligations of the Guarantors, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityenforceable in accordance with their terms;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityterms;
(viiivii) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and the Guarantors;
(ixviii) The the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as ;
(xix) the enforceability thereof may be limited by bankruptcyExchange Notes have been duly authorized and, insolvency or similar laws affecting creditors' rights generally when executed and (y) rights authenticated in accordance with the provisions of acceleration the Indenture and delivered in exchange for Senior Notes in accordance with the Indenture and the availability Exchange Offer, will be entitled to the benefits of equitable remedies may the Indenture and will be limited by equitable principles valid and binding obligations of general applicability;the Company, enforceable in accordance with their terms; and
(x) when the Series B Exchange Notes have been duly authorized;are executed and authenticated in accordance with the provisions of the Indenture and delivered in exchange for Senior Notes in accordance with the Indenture and the Exchange Offer, the Subsidiary Guarantees endorsed thereon will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Guarantors, enforceable in accordance with their terms.
(xi) the statements under the captions "Business--Pending AcquisitionsThe Acquisition," "--Operations--NYSE Rules Governing Our Specialist ActivitiesManagement," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesCertain Transactions," "Description of Senior Subordinated NotesCredit Facility," "Description of Other Indebtedness," "Certain United States Federal Income Tax ConsequencesSenior Notes" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Wilsons the Leather Experts Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes Units under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to any of the Notes Securities than that on which the Notes Units were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Arnall Golden & Xxxxxxxx L.L.P.Gregory, LLP, counsel for the CompanyXxxxxxy and the Guarantors, to the effect that:
(i) each of the Company has been and its subsidiaries is duly incorporatedincorporated or organized, is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation or organization and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized (or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the similar) power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation or limited liability company authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, nonassessable and not subject to any preemptive or similar rightsrights except as set forth in the documents relating to the Equity Financing;
(iv) all of the outstanding shares of capital stock, stock or membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries subsidiaries have been duly authorized and validly issued and are fully paid and non-assessablenonassessable, and are owned, directly or indirectly, owned by the Company, to the knowledge of such counsel, free and clear of any Lien, except as provided in the Credit Agreement;
(v) the Series A Warrant Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Warrants have been duly authorized and, when executed by the Company in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Warrant Shares have been duly and validly authorized for issuance by the Company and, when issued pursuant to the terms of the Warrants and the Warrant Agreement, will be validly issued, fully paid, nonassessable and not subject to any preemptive or similar rights pursuant to law or the Company's certificate of incorporation or any other preemptive or similar rights;
(viii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(ix) the Initial Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vix) the Company had Guarantees have been duly authorized and, when the corporate rightInitial Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against each of the Company Guarantors in accordance with its their terms except as (ax) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viixi) each of the Indenture Company and the Guarantors has duly and validly authorized the issuance of the Initial Notes, the Guarantees and Warrants as Units.
(xii) this Agreement has been duly authorized, executed and delivered by the Company and the Guarantors;
(xiii) the Notes Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiixiv) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Warrant Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xxv) the Series B Exchange Notes have been duly authorized;
(xixvi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition The Sprint PCS Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Our Indebtedness," "Principal Stockholders," "Certain Relationships and Related Transactions," "Regulation of the Wireless Industry," "Description of Units," "Description of Notes," "Description of Other IndebtednessWarrants," "Description of Capital Stock," "Issuance of Convertible Preferred Stock," "Certain United States Federal Income Tax ConsequencesConsiderations" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Horizon Personal Communications Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(z), 6(ii), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Harwxxx Xxxaxx Xxxx Xxxxxxx & Xxxxxxxx L.L.P.Xannxx, X.C., counsel for the CompanyCompany and the Guarantors, in the form attached hereto as Schedule C. The opinion of Harwxxx Xxxaxx Xxxx Xxxxxxx & Xannxx, X.C., described in Section 9(e) above shall be rendered to you at the request of the Company and the Guarantors and shall so state therein. In giving such opinion with respect to the effect that:
(i) matters covered by Section 9(e)(xxii), Harwxxx Xxxaxx Xxxx Xxxxxxx & Xannxx, X.C., may state that their opinion and belief are based upon their participation in the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws preparation of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified. Harwxxx Xxxaxx Xxxx Xxxxxxx & Xannxx, X.C. may rely on the opinion of Friex, Xxanx, Xxrrxx, Xxrixxx & Xacoxxxx xx to ownmatters of New York law.
(f) The Initial Purchasers shall have received on the Closing Date an opinion, lease dated the Closing Date, of Friex, Xxanx, Xxrrxx, Xxrixxx & Xacoxxxx, xxunsel for the Initial Purchasers, in form and operate its properties; each of its Subsidiaries has been duly organized substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Arthxx Xxxexxxx XXX, independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in which it accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Initial Purchasers shall have received, at the time this Agreement is organized executed and at the Closing Date, letters dated the date hereof or incorporatedthe Closing Date, as the case may be, in form and has substance satisfactory to the power Initial Purchasers from Ernst & Young LLP, independent public accountants, containing the information and authority statements of the type ordinarily included in accountants' "comfort letters" to carry on its business as described the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum and to own, lease and operate its properties;Memorandum.
(iii) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(j) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company, the Guarantors and the Trustee.
(k) The Company and the Guarantors shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company is duly qualified and is the Guarantors, in good standing the form attached as a foreign corporation authorized an exhibit to do business in each jurisdiction in which the nature Indenture.
(l) Neither the Company nor the Guarantors shall have failed at or prior to the Closing Date to perform or comply with any of its business or its ownership or leasing of property requires such qualification except where the failure agreements herein contained and required to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business performed or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of complied with by the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to or the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interestsGuarantors, as the case may be, of each of at or prior to the Company's Subsidiaries Closing Date.
(m) The Company and the Guarantors have been duly authorized and validly issued and are fully paid and non-assessableagreed, and are owned, not to directly or indirectlyindirectly offer, by pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any options, right or warrant for the Companysale of or otherwise dispose of or transfer any debt securities, or file a registration statement under the Act with respect to the knowledge foregoing, without the prior written consent of such counselDonaxxxxx, free and clear Xxfkxx & Xenrxxxx Xxxurities Corporation on behalf of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in for a period of 90 days after the date of the Offering Memorandum; provided that, insofar as such statements constitute notwithstanding the foregoing, the Company may borrow under the Bank Credit Facility and may file and cause to become effective a summary of registration statement under the legal matters, documents or proceedings referred Act with respect to therein, fairly present in all material respects such legal matters, documents and proceedings;the Series B Notes.
Appears in 1 contract
Samples: Purchase Agreement (Pharmerica Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(aa), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.Xxxxxxxx, counsel for the Company, to the effect that:set forth as Exhibit B, and an opinion of Xxxxxxx X. Xxxxx, Esq., Senior Vice President and General Counsel for the Company, to the effect set forth on Exhibit C. The opinions of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx and Xxxxxxx X. Xxxxx, Esq., Senior Vice President and General Counsel to the Company, described in Section 9(e) above shall be rendered to you at the request of the Company and shall so state therein. In addition, such counsel may state that the opinions expressed therein are solely for the Initial Purchasers' benefit and may not be relied upon in any manner or for any purpose by any other person.
(if) The Initial Purchasers shall have received on the Company has been duly incorporatedClosing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Xxxxx & XxXxxxxx, counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this Agreement is validly existing as a corporation in good standing under executed and at the laws of its jurisdiction of incorporation Closing Date and has each Option Closing Date, letters dated the corporate power and authority to carry on its business as described in date hereof or the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized Closing Date or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationan Option Closing Date, as the case may be, in good standing under the laws form and substance satisfactory to the Initial Purchasers from Deloitte & Touche LLP, independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture which it is organized shall have been entered into by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company.
(k) The Company shall not have failed at or incorporatedprior to the Closing Date or any Option Closing Date, as the case may be, to perform or comply with any of the agreements herein contained and has the power and authority required to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) be performed or complied with by the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business at or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, prior to the knowledge of such counsel, not subject to any preemptive Closing Date or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interestsOption Closing Date, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Holding Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any intended or potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change inchange, in any rating of the Company or the Holding Company or any securities of the Company or the Holding Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or the Holding Company or any securities of the Company or the Holding Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the President and the Chief Financial Officer of the Company, confirming the matters set forth in Sections 9(a), 9(b) and 9(d) hereof.
(d) Since the respective dates as of which information is given in the Offering Memorandum Memorandum, other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), ) (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariesthe Holding Company, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-long- term debt of the Company or any of its Subsidiaries the Holding Company and (iii) neither the Company nor any of its Subsidiaries the Holding Company shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i(i), 9(c)(ii(ii) or 9(c)(iii(iii) of this Section 9(d), in your reasonable judgmentthe judgment of the Initial Purchasers, is may be material and adverse andor, in your reasonable judgmentthe judgment of the Initial Purchasers, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(de) You No action shall have received on been taken (including the Closing Date (xissuance of any stop order) a certificate dated and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:,
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.
(ef) You The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers)opinion, dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P.Xxxxxxx Xxxx LLP, counsel for the Company and the Holding Company, substantially in the form of Exhibit A.
(g) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Xxxx Xxxxx Xxxx & XxXxxx, special regulatory counsel for the Company and the Holding Company, substantially in the form of Exhibit B.
(h) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the effect that:Initial Purchasers.
(i) The Initial Purchasers shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Coopers & Xxxxxxx LLP and Xxxxxx Xxxxxxxx LLP, inde- pendent public accountants, containing the information and statements of the jurisdiction type ordinarily included in which it is organized or incorporated, as accountants' "comfort letters" to the case may be, Initial Purchasers with respect to the financial statements and has the power and authority to carry on its business as described certain financial information contained in the Offering Memorandum and to own, lease and operate its properties;Memorandum.
(iij) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the The Series A Notes shall have been approved by the NASD for trading and duly authorized andlisted in PORTAL, when executed provided that the Initial Purchasers shall have reasonably cooperated in obtaining such approval.
(k) The Company, the Holding Company and authenticated in accordance with the provisions of Trustee shall have entered into the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreementshall have received a counterpart, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Companyconformed as executed, enforceable in accordance with their terms except as thereof.
(xl) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration The Company and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) Holding Company shall have executed the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Registration Rights Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the CompanyInitial Purchasers shall have received an original copy thereof, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement the Holding Company.
(m) The Company shall not have failed at or prior to the Closing Date to perform or comply with any of the Company, enforceable against the Company agreements herein contained and in accordance required to be performed or complied with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company at or prior to the Closing Date.
(n) The Initial Purchasers shall have received an opinion from Xxxxxx, Xxxxxx & Co., Inc. in form and is a valid substance reasonably satisfactory to the Initial Purchasers that the Offering and binding agreement the application of the Company, enforceable against net proceeds therefrom will not render the Company in accordance or the Holding Company insolvent, leave the Company or the Holding Company with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency inadequate or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements unreasonably small capital or result in the "Plan of Distribution" furnished Company or the Holding Company incurring indebtedness beyond its ability to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar repay as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;indebtedness matures.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Firm Notes and the Option Notes, if applicable, under this Agreement on the Closing Date are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuer contained in this Agreement and in each of the Operative Documents that are not modified by materiality or Material Adverse Effect shall be true and correct in all material respects respects, and all of the representations and warranties of the Issuer contained in this Agreement that are modified by materiality or Material Adverse Effect shall be true and correct, in each case, as of the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Issuer and each other party to the Operative Documents (other than the Initial Purchaser) shall have performed all covenants and agreements, in all material respects, and satisfied all conditions, in all material respects, on its part to be performed or satisfied at or prior to the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Issuer or any of its Subsidiaries or any of its or their respective securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "“nationally recognized statistical rating organization" ” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuer or any securities of the Company its Subsidiaries by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Final Offering Memorandum Circular other than as set forth disclosed in or contemplated by the Final Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the conditionproperties, condition (financial or otherwise), or the earnings, business, management or operations of the Company and Issuer or any of its Subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock equity interests or in the long-term debt of the Company Issuer or any of its Subsidiaries and (iii) neither the Company Issuer nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your the reasonable judgmentjudgment of the Initial Purchaser, is material and adverse and, in your the reasonable judgmentjudgment of the Initial Purchaser, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Final Offering MemorandumCircular.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, Date signed by the Chairman, Chief Executive Officer and the President and by or the Executive Vice President, Finance President and the Chief Financial Officer of the CompanyIssuer
(i) stating that the representations and warranties of the Issuer contained in this Agreement that are not modified by materiality or Material Adverse Effect are true and correct, in all material respects, and all representations and warranties of the Issuer contained in this Agreement that are modified by materiality or Material Adverse Effect are true and correct, with the same force and effect as if made on and as of the Closing Date;
(ii) confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and clauses 9(b) and 9(c) hereof;
(iii) stating that each of the Company Issuer has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required on its part to be complied with performed or satisfied on at or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse EffectDate; and
(iiiv) each stating that they have carefully examined the Final Offering Circular and, in their opinion, since the date of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and Final Offering Circular no event has occurred (including the receipt of any notice from any authority which should, under applicable securities laws, have been set forth in a supplement or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome amendment to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectFinal Offering Circular.
(e) You shall have received on the Closing Date a certificate dated the Closing Date signed by the Secretary of the Issuer certifying (i) the Certificate of Incorporation and Bylaws of the Issuer, (ii) the resolutions adopted by the Board of Directors of the Issuer approving the transactions contemplated by this Agreement, the Final Offering Circular and the Operative Documents and (iii) as to the incumbency of the officers of the Issuer executing the Operative Documents on behalf of the Issuer.
(f) You shall have received on the Closing Date an opinion (subject to customary qualifications, limitations and exceptions and reasonably satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date of MxXxxxxxx Will & Exxxx LLP, counsel for the Issuer, substantially to the effect set forth in Exhibit B attached hereto.
(g) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing DateDate of Kasowitz, of Fulbright Benson, Txxxxx & Xxxxxxxx L.L.P.Fxxxxxxx LLP, special litigation counsel for the CompanyIssuer, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) that the statements under the captions "“Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements —Lxxxxxx Group, Inc.—Legislation, Regulation and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" Litigation” and "Plan of Distribution" (other than statements “Offering Circular Summary—Recent Developments—Litigation” in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Final Offering MemorandumCircular, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are accurate and complete and fairly present in all material respects such legal matters, documents and proceedings;proceedings and do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) You shall have received on the Closing Date an opinion, dated the Closing Date, of Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchaser, reasonably satisfactory to you.
(i) You shall have received at the Closing Date letters dated the date hereof and dated the Closing Date in form and substance satisfactory to you and counsel for the Initial Purchaser from PricewaterhouseCoopers LLP, independent public accountants, (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the SEC and (ii) containing the information and statements of the type ordinarily included in accountants’ “comfort letters” to you with respect to the financial statements and certain financial information contained in or incorporated by reference into the Final Offering Circular.
(j) The Notes shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD related to trading in the PORTAL market.
(k) The Issuer and each other party to the Operative Documents (other than the Initial Purchaser) shall have executed and delivered the Operative Documents and you shall have received fully executed copies thereof. The Operative Documents shall be in full force and effect as of the Closing Date and shall conform to the descriptions thereof contained in the Final Offering Circular. The Issuer shall have received the requisite governmental and regulatory approval in connection with each of the Operative Documents and transactions contemplated by the Final Offering Circular to be completed on or before the Closing Date.
(l) The Conversion Stock shall have been duly listed, subject to notice of issuance, on The New York Stock Exchange.
(m) The Issuer shall not have failed in any material respect at or prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Issuer at or prior to the Closing Date.
(n) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any Governmental Authority which would, as of the Closing Date, prevent the issuance of the Notes or the consummation of any of the other transactions contemplated by the Operative Documents; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuer, threatened against, the Issuer before any court or arbitrator or any Governmental Authority or an official thereof that, if adversely determined, would be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Final Offering Circular, or any amendment or supplement thereto, or which would be expected to have a Material Adverse Effect.
(o) The Initial Purchaser and Bxxxxxx X. XxXxx and/or Hxxxxx X. Xxxxxx, or any entity affiliated with either of them, shall have entered into a master securities loan agreement and any other agreements or documents relating thereto pursuant to which the Issuer shall have the option, in its sole discretion, to borrow up to 300,000 shares of Common Stock on the terms and for the duration set forth in such master securities loan agreement.
(p) The Issuer shall have delivered to the Initial Purchaser executed lock-up agreements from each of the directors and executive officers of the Issuer set forth on Schedule II in substantially the form attached hereto as Exhibit A.
(q) The Issuer shall have furnished to the Initial Purchaser and counsel to the Initial Purchaser with such other certificates, opinions or other documents as they may have reasonably requested and as are customary in the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or Purchase Agreement LA\1074155.8 intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "“nationally recognized statistical rating organization" ” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable UBS’ judgment, is material and adverse and, in your reasonable UBS’ judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the ChairmanGxxxxxx X. Xxxxxx and C. Exxx Xxxxxx, in their capacities as President and Chief Executive Officer Officer, and President and by the Executive Vice PresidentChief Financial Officer, Finance respectively, of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) (A) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright Gxxx Cxxx Xxxx & Xxxxxxxx L.L.P.Freidenrich LLP, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum Document and to own, lease and operate its properties;
(ii) the Company is Notes and the Indenture have been duly qualified authorized, executed and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which delivered by the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;Company; Purchase Agreement LA\1074155.8
(iii) all the outstanding Notes are convertible into shares of capital stock Common Stock in accordance with the terms of the Company Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued issued, fully paid and are fully paidnonassessable, nonwill conform to the description thereof contained in the Offering Memorandum; the Company has filed with the Nasdaq National Market a “Notification Form: Listing of Additional Shares” (the “Notification”) with respect to the Common Stock initially issuable upon conversion of the Notes; the Company has been advised by the staff of Nasdaq that the Notification was deemed complete and that no additional information is required by Nasdaq with respect to listing the Common Stock initially issuable upon conversion of the Notes on the Nasdaq National Market and has not received any notification to the contrary from Nasdaq; the Company has the authorized capital stock as set forth in the Offering Memorandum; and the stockholders of the Company have no pre-assessable andemptive or, to the knowledge of such counsel, not subject similar rights with respect to any preemptive the Notes or similar rightsthe Common Stock issuable upon the conversion of the Notes;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have this Agreement has been duly authorized authorized, executed and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, delivered by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have The Registration Rights Agreement has been duly authorized andauthorized, when executed and authenticated delivered by the Company and is a valid and binding agreement of the Company enforceable against the Company in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreementits terms, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' ’ rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "“Description of Senior Subordinated Notes," "” “Description of Other Indebtedness," "Capital Stock” and “Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) Considerations” in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, matters or documents or proceedings referred to therein, fairly present in all material respects such legal mattersmatters and documents;
(vii) the execution, delivery and performance of this Agreement and the other Operative Documents by the Company, the compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not: (i) require any consent, approval, Material Authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states or for filings required by the Registration Rights Agreement), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of the agreements set forth on Schedule E hereto (the “Material Contracts”), (iii) violate or conflict with any applicable law or any rule or regulation, or, to such counsel’s knowledge, any existing judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company or its property, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under any of the Material Contracts, or (v) to such counsel’s knowledge, result in the termination, suspension or revocation of any Material Authorization of the Company; Purchase Agreement LA\1074155.8
(viii) except as set forth on Schedule F hereto or in the Offering Memorandum, such counsel does not know of any legal or governmental proceedings pending to which the Company is a party or to which its property is subject, or threatened with respect to the Company or its property;
(ix) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the net proceeds thereof as described in the Offering Memorandum, will not be, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as set forth on Schedule G hereto or in the Offering Memorandum, to such counsel’s knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the Company to include such securities with the Notes registered pursuant to any Registration Statement;
(xi) to such counsel’s knowledge, except as set forth on Schedule F hereto or in the Offering Memorandum, the Company has not received any notice of infringement of or conflict with asserted rights of others with respect to any of the Company’s patent rights, licenses, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names which has not been resolved;
(xii) the Indenture complies as to form in all material respects with the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. It is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Indenture under the TIA; and
(xiii) no registration under the Act of the Securities is required for the sale of the Securities to the Initial Purchasers as contemplated by this Agreement or for the Exempt Resales assuming that: (i) each Initial Purchaser is a QIB, (ii) the accuracy of, and compliance with, the Initial Purchasers’ representations and agreements contained in Section 7 of this Agreement, and (iii) the accuracy of the representations of the Company set forth in Section 6(gg) of this Agreement. Such opinion shall also include a statement that such counsel has no reason to believe that, as of the date of the Offering Memorandum or as of the Closing Date or the Option Closing Date, as the case may be, the Offering Memorandum and all documents incorporated therein by reference, as amended or supplemented, if applicable (except for the financial statements and proceedings;other financial data included therein or incorporated therein by reference, as to which such counsel need not express any belief) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Purchase Agreement LA\1074155.8 The opinion of Gxxx Cxxx Xxxx & Freidenrich LLP described in Section 9(e)(A) above shall be rendered to you at the request of the Company and shall so state therein. In giving such statement, Gxxx Cxxx Xxxx & Freidenrich LLP may state that their opinion and belief are based upon their participation in the preparation of the Offering Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified.
Appears in 1 contract
Samples: Purchase Agreement (Invitrogen Corp)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering considered assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgmentthe judgment of First Chicago, is material and adverse and, in your reasonable judgmentthe judgment of First Chicago, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificates dated the Closing Date, signed by the Chairman, President or Chairman and Treasurer or Chief Executive Financial Officer and President and by the Executive Vice President, Finance of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(y), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P.Xxxxxx Xxxxxxxx, counsel for the CompanyCompany and the Guarantors, to the effect that:
(i) Each of the Company and the Guarantors has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business properties as described in the Offering Memorandum and to own, lease and operate its properties;Memorandum.
(ii) Based solely on certificates of public officials, each of the Company and the Guarantors is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction the states set forth in which the nature of its business such opinion or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;an exhibit thereto.
(iii) all All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have Guarantors has been duly authorized and validly issued and are fully paid and non-assessable, and are ownedeach Guarantor's stock records, directly or indirectly, stock certificates and minute books indicate that such Guarantor is owned by the CompanyCompany in the percentage set forth on Schedule A, and to the knowledge of such counsel, 's knowledge are free and clear of any Lien;, except as described in the Offering Memorandum.
(viv) the The Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;applicability (regardless of whether enforceability is considered in a proceeding at law or in equity).
(viv) The Subsidiary Guarantees have been duly authorized by each Guarantor and will be duly authorized with the Company had Series A Notes are executed and authenticated in accordance with the corporate rightprovisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the Subsidiary Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights equitable principles of acceleration general applicability (regardless of whether enforceability is considered in a proceeding at law or in equity).
(vi) The Indenture has been duly authorized, executed and delivered by the availability Company and each Guarantor and is a valid and binding agreement of equitable remedies the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors rights generally and (y) equitable principles of general applicability;applicability regardless of whether enforceability is considered in a proceeding at law or in equity).
(viiivii) this This Agreement has been duly authorized, executed and delivered by the Company;Company and the Guarantors.
(ixviii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;applicability (regardless of whether enforceability is considered in a proceeding at law or in equity).
(xix) the The Series B Notes have been duly authorized;.
(xix) the The statements under the captions "BusinessManagement's Discussion and Analysis of Financial Condition and Results of Operations--Pending AcquisitionsLiquidity and Capital Resources," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements Management and Noncompetition Agreements," "Incentive Awards to Our EmployeesDirectors," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, matters of documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;matters or documents.
Appears in 1 contract
Samples: Purchase Agreement (Iae Inc)
Conditions of Initial Purchasers’ Obligations. The obligations --------------------------------------------- of the Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on the Option Closing Date are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement that are qualified as to materiality shall be true and correct on the Closing Date and on each Option Closing Date, if any, and such representations and warranties that are not so qualified shall be true and correct in all material respects on the Closing Date and on each Option Closing Date, if any, in each case with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as the case may be.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any adverse change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(ci) Since the earlier of (A) the date hereof and (B) the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreementthereto), (ix) there shall not have occurred any change material adverse change, or any development which could reasonably be expected to result in involving a change prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, management or operations of the Company and its Subsidiaries, taken as a whole, (iiy) and there shall not have been any change change, or any development which could reasonably be expected to result in involving a change prospective material adverse change, in the capital stock or in the long-term debt of the Company or any of its Subsidiaries from that set forth in the Offering Memorandum and (iiiii) neither the Company nor any of and its Subsidiaries shall have incurred any no liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, which is material to the Company and adverse andits Subsidiaries, in your reasonable judgmenttaken as a whole, makes it impracticable to market the Series A Notes on the terms other than those liabilities and in the manner contemplated obligations reflected in the Offering MemorandumMemorandum or incurred in the ordinary course of business.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, and on each Option Closing Date, if any, dated such Option Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii9(a), 9(a9(b) and 9(b9(c) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) You The Initial Purchasers shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (satisfactory to you the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date or Option Closing Date, as the case may be, of Fulbright Xxxxxxx & Xxxxxxxx L.L.P.XxXxxxxx, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the terms, subject to certain exceptions customarily taken in connection with enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityopinions given under California law;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the terms, subject to certain exceptions customarily taken in connection with enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityopinions given under California law;
(viiiiii) this Agreement has been duly authorized, executed and delivered by the Company;
(ixiv) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as subject to (x) the certain exceptions customarily taken in connection with enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally opinions given under California law and (y) public policy or laws limiting rights of acceleration indemnity and the availability of equitable remedies may be limited by equitable principles of general applicabilitycontribution;
(x) the Series B Notes have been duly authorized;
(xiv) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other IndebtednessCapital Stock," "Description of Indebtedness" and "Certain United States U.S. Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, matters or provisions of documents or proceedings referred to therein, fairly present provide a fair summary of such legal matters or provisions in all material respects;
(vi) the execution, delivery and performance of this Agreement by the Company, compliance by the Company with all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, approval, authorization or other order of any California or Federal court, regulatory body, administrative agency or other governmental body (except as such may be required under the Act or other securities or Blue Sky laws) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the Company's Amended and Restated Revolving Credit Agreement and Amended and Restated Term Loan Agreement, each dated April 30, 1998, as amended through the date of such opinion, or the charter or by-laws of the Company;
(vii) the Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(viii) the Indenture complies as to form in all material respects with the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. It is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Indenture under the TIA;
(ix) no registration under the Act of the Securities is required for the sale of the Securities to the Initial Purchasers as contemplated by this Agreement or for the Exempt Resales assuming (i) each Initial Purchaser is either a QIB or an Accredited Institution, (ii) the accuracy of, and compliance with, the Initial Purchasers' representations and agreements contained in Section 7 of this Agreement and the Company's representations contained in Sections 6(x), (cc), (dd) and (ee) and (iii) the Company's compliance with its agreement set forth in Section 5(h) of this Agreement;
(x) the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such legal mattersconversion and, documents when issued upon such conversion, will be validly issued, fully paid and proceedingsnonassessable and will conform in all material respects to the description thereof contained in the Offering Memorandum;
(xi) the Company's Annual Report on Form 10-K for its fiscal year ended December 31, 1997 (the "1997 Form 10-K") filed pursuant to the Exchange Act and incorporated by reference in the Offering Memorandum (except for financial statements, schedules and other financial data as to which no opinion need be expressed) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state that in its capacity as special counsel for the Company such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Initial Purchasers at which the contents of the Offering Memorandum and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Offering Memorandum (except as indicated in clause (v) above) and has made no independent check or verification thereof, on the basis of the foregoing (relying as to materiality to a large extent upon the statements of officers and other representatives of the Company), no facts have come to such counsel's attention that have caused such counsel to believe that the Offering Memorandum (including the Incorporated Documents), as of its date and as of the Closing Date and each Option Closing Date, if any, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no opinion or belief with respect to the financial statements or other financial and statistical data included or incorporated by reference in the Offering Memorandum. In giving the opinions specified in (i), (ii) and (iv) above, such counsel may assume that the laws of the State of California govern the referenced documents. In giving the opinion specified in (vi) above, such counsel may rely upon an opinion or opinions of XxXxxxxxx, Xxxx & Xxxxx, regulatory counsel for the Company rendered pursuant to paragraph (h) below.
(f) The Initial Purchasers shall have received on the Closing Date and on each Option Closing Date, if any, an opinion, dated the Closing Date or Option Closing Date, as the case may be, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date or Option Closing Date, as the case may be, of Xxxxx X. Xxxxxxxx, General Counsel of the Company, to the effect that:
(i) the Company is duly incorporated, validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority required to carry on its business as it is currently being conducted and to own, lease and operate its properties;
(ii) each Principal Subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, has the corporate power and authority to carry on its business as it is currently being conducted and to own, lease and operate its properties, is duly qualified and is in good standing as a foreign corporation and is authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification or authorization, except where the failure to be so qualified or authorized and be in good standing could not, in the aggregate, reasonably be expected to have a material adverse effect on the business, operations, properties, or financial or other condition of the Company and its Subsidiaries, considered as a whole;
(iii) except as disclosed in the Offering Memorandum, all of the outstanding shares of capital stock of each of the Company's corporate Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and, (i) in the cases of the Principal Subsidiaries, are wholly owned by the Company free and clear of any Liens and (ii) in the case of each other corporate Subsidiary, are otherwise owned directly or indirectly by the Company free and clear of any Liens, except such Liens that would not, singly or in the aggregate, have a Material Adverse Effect. All of the outstanding partnership interests in each of the Company's partnership Subsidiaries have been duly authorized by its respective partnership agreement and validly issued and to such counsel's knowledge after due inquiry the partnership interests in such partnerships that are not owned by unaffiliated third parties are owned directly or indirectly by the Company, free and clear of any Liens, except such Liens that would not, singly or in the aggregate, have a Material Adverse Effect, and, to such counsel's knowledge, any partnership capital contribution obligations of the Company in each partnership Subsidiary have been satisfied;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of AWIN, the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Allied and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its Subsidiaries subsidiaries and (iii) neither the Company Allied nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice PresidentChief Financial Officer of AWIN, Finance the Company and the each of the CompanyGuarantors, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that AWIN, the Company and each of the Company Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Latham & Xxxxxxxx L.L.P.Watkins, counsel for AWIN, the Company and the Guarantors, tx xxx effxxx xxx forth on Exhibit A attached hereto and an opinion of Steven Helm, Vice President and General Counsel of the Company to the xxxxxx xxx forth on Exhibit B attached hereto. In addition, you shall have received opinions (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of counsel to AWIN, the Company and the Guarantors (satisfactory to you and counsel for the Initial Purchasers) as to such matters as you may reasonably request with respect to Guarantors organized outside the states of New York and Delaware which are identified as Significant Subsidiaries (within the meaning of Rule 1-02 of Regulation 5-X under the Act) in an officer's certificate addressed to you and dated the Closing Date. The opinion of Latham & Watkins described in Section 9(e) above shall be rendered to xxx xt txx xxxxest of AWIN, the Company and the Guarantors and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Cravath, Swaine & Moore, counsel for the CompanyInitial Purchasers, in form and substance reasxxxxxy satisfactory to the effect that:Initial Purchasers.
(ig) The Initial Purchasers shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Arthur Andersen LLP, independent public accountants, containing the ixxxxxxtxxx xxx statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture, including all supplements thereto relating to the Series A Notes, which it is organized shall have been entered into by AWIN, the Company and the Guarantors and the Trustee (and which shall provide for the assumption of the obligations Series A Notes by the Company and the execution of the Guarantees by the Guarantors).
(j) The Company and the Guarantors shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(k) AWIN, the Company and the Trustee shall have executed the Escrow Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by AWIN and the Trustee.
(l) None of AWIN, the Company or incorporatedthe Guarantors shall have failed at or prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by AWIN, the Company or the Guarantors, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business at or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, prior to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "“nationally recognized statistical rating organization" ” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable UBS’ judgment, is material and adverse and, in your reasonable UBS’ judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the ChairmanXxxxxxx X. Xxxxxx and C. Xxxx Xxxxxx, in their capacities as President and Chief Executive Officer Officer, and President and by the Executive Vice PresidentChief Financial Officer, Finance respectively, of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) (A) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright Xxxx Xxxx Xxxx & Xxxxxxxx L.L.P.Freidenrich LLP, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum Document and to own, lease and operate its properties;
(ii) the Company is Notes and the Indenture have been duly qualified authorized, executed and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which delivered by the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationCompany;
(iii) all the outstanding Notes are convertible into shares of capital stock Common Stock in accordance with the terms of the Company Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued issued, fully paid and are fully paidnonassessable, nonwill conform to the description thereof contained in the Offering Memorandum; the Company has filed with the Nasdaq National Market a “Notification Form: Listing of Additional Shares” (the “Notification”) with respect to the Common Stock initially issuable upon conversion of the Notes; the Company has been advised by the staff of Nasdaq that the Notification was deemed complete and that no additional information is required by Nasdaq with respect to listing the Common Stock initially issuable upon conversion of the Notes on the Nasdaq National Market and has not received any notification to the contrary from Nasdaq; the Company has the authorized capital stock as set forth in the Offering Memorandum; and the stockholders of the Company have no pre-assessable andemptive or, to the knowledge of such counsel, not subject similar rights with respect to any preemptive the Notes or similar rightsthe Common Stock issuable upon the conversion of the Notes;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have this Agreement has been duly authorized authorized, executed and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, delivered by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have The Registration Rights Agreement has been duly authorized andauthorized, when executed and authenticated delivered by the Company and is a valid and binding agreement of the Company enforceable against the Company in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreementits terms, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' ’ rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "“Description of Senior Subordinated Notes," "” “Description of Other Indebtedness," "Capital Stock” and “Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) Considerations” in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, matters or documents or proceedings referred to therein, fairly present in all material respects such legal mattersmatters and documents;
(vii) the execution, delivery and performance of this Agreement and the other Operative Documents by the Company, the compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not: (i) require any consent, approval, Material Authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states or for filings required by the Registration Rights Agreement), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of the agreements set forth on Schedule E hereto (the “Material Contracts”), (iii) violate or conflict with any applicable law or any rule or regulation, or, to such counsel’s knowledge, any existing judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company or its property, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under any of the Material Contracts, or (v) to such counsel’s knowledge, result in the termination, suspension or revocation of any Material Authorization of the Company;
(viii) except as set forth on Schedule F hereto or in the Offering Memorandum, such counsel does not know of any legal or governmental proceedings pending to which the Company is a party or to which its property is subject, or threatened with respect to the Company or its property;
(ix) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the net proceeds thereof as described in the Offering Memorandum, will not be, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as set forth on Schedule G hereto or in the Offering Memorandum, to such counsel’s knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the Company to include such securities with the Notes registered pursuant to any Registration Statement;
(xi) to such counsel’s knowledge, except as set forth on Schedule F hereto or in the Offering Memorandum, the Company has not received any notice of infringement of or conflict with asserted rights of others with respect to any of the Company’s patent rights, licenses, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names which has not been resolved;
(xii) the Indenture complies as to form in all material respects with the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. It is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Indenture under the TIA; and
(xiii) no registration under the Act of the Securities is required for the sale of the Securities to the Initial Purchasers as contemplated by this Agreement or for the Exempt Resales assuming that: (i) each Initial Purchaser is a QIB, (ii) the accuracy of, and compliance with, the Initial Purchasers’ representations and agreements contained in Section 7 of this Agreement, and (iii) the accuracy of the representations of the Company set forth in Section 6(gg) of this Agreement. Such opinion shall also include a statement that such counsel has no reason to believe that, as of the date of the Offering Memorandum or as of the Closing Date or the Option Closing Date, as the case may be, the Offering Memorandum and all documents incorporated therein by reference, as amended or supplemented, if applicable (except for the financial statements and proceedings;other financial data included therein or incorporated therein by reference, as to which such counsel need not express any belief) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The opinion of Xxxx Xxxx Xxxx & Freidenrich LLP described in Section 9(e)(A) above shall be rendered to you at the request of the Company and shall so state therein. In giving such statement, Xxxx Xxxx Xxxx & Freidenrich LLP may state that their opinion and belief are based upon their participation in the preparation of the Offering Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified.
Appears in 1 contract
Samples: Purchase Agreement (Invitrogen Corp)
Conditions of Initial Purchasers’ Obligations. The obligations --------------------------------------------- of the Initial Purchasers Purchaser to purchase the Series A Notes Units under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement that are qualified as to "Material Adverse Effect" or other measure of materiality shall be true and correct, and all of the representations and warranties of the Company and the Guarantors that are not so qualified shall be true and correct in all material respects respects, on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to any of the Notes Securities than that on which the Notes Units were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-long- term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Xxxxx, Xxxxx & Xxxxxxxx L.L.P.Xxxxx, counsel for the CompanyCompany and the Guarantors, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires that is listed on a schedule to such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationopinion;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, nonassessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries subsidiaries have been duly authorized and validly issued and are fully paid and non-assessablenonassessable, and are owned, directly or indirectly, owned by the Company, to the knowledge of such counsel, free and clear of any Lien, except as provided in the Credit Agreement;
(v) the Series A Warrant Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Warrants have been duly authorized and, when executed by the Company in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Warrant Shares have been duly and validly authorized for issuance by the Company and, when issued pursuant to the terms of the Warrants and the Warrant Agreement, will be validly issued, fully paid, nonassessable and not subject to any preemptive or similar rights;
(viii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(ix) the Initial Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vix) the Company had Guarantees have been duly authorized and, when the corporate rightInitial Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, power the holders of the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a Guarantees will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against each of the Company Guarantors in accordance with its their terms except as (ax) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viixi) each of the Indenture Company and the Guarantors has duly and validly authorized the issuance of the Initial Notes, the Guarantees and Warrants as Units.
(xii) this Agreement has been duly authorized, executed and delivered by the Company and the Guarantors;
(xiii) the Notes Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiixiv) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Warrant Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xxv) the Series B Exchange Notes have been duly authorized;
(xixvi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition The Sprint PCS Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Our Indebtedness," "The Reorganization," "Regulation of the Wireless Industry," "Description of Units," "Description of Notes," "Description of Other IndebtednessWarrants," "Description of Capital Stock" and "Certain United States Federal Income Tax ConsequencesConsiderations" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Ipcs Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors, contained in this Agreement shall be true and correct in all material respects on the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any adverse change or any adverse development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any adverse change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable the Initial Purchaser's judgment, is material and adverse and, in your reasonable the Initial Purchaser's judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchasers shall have received on the Closing Date (xi) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(bb), 9(a) and 9(b) and stating that the Company and each of the Company Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date Date; and (yii) a certificate of dated the Closing Date, signed by the President and Chief Compliance Financial Officer of the Company or another and an executive officer and a financial officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company Guarantors, stating that the industry, statistical and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and selfmarket-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or related data included in the aggregateOffering Memorandum has been reviewed by such persons and, have a Material Adverse Effect; each to the best knowledge of such Authorization is valid persons, subject to the risks and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as limitations described in the Preliminary Offering Memorandum and the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to is true and accurate in all material respects and is based on or derived from sources which the Company or any of its Subsidiaries; except where such failure and the Guarantors believe to be valid reliable and in full force and effect or to accurate, which certificate shall be in compliance, form and substance reasonably satisfactory to counsel for the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectInitial Purchaser.
(e) You The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to you the Initial Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Milbank, Tweed, Xxxxxx & Xxxxxxxx L.L.P.XxXxxx LLP, counsel for the Company and certain of the Guarantors substantially in the form of Annex A attached hereto.
(f) The Initial Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated the Closing Date, of Xxxxxx Xxxxxx, General Counsel to the Company, to the effect set forth in Annex B.
(g) The Initial Purchaser shall have received on the Closing Date an opinion (each in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated the Closing Date, of Xxxxx & Xxxxxxxxx LLP, counsel for The O.S. Xxxxx Company, and Xxxxx & Xxxxxxx, counsel for United Musical Instruments Holdings, Inc. and United Musical Instruments USA, Inc., to the effect set forth in Annexes C and D, respectively.
(h) The Initial Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated the Closing Date, of Fish & Xxxxxxxxxx, intellectual property counsel for the Company, to the effect that:set forth in Annex E.
(i) The Initial Purchaser shall have received on the Company has been duly incorporatedClosing Date an opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser.
(j) The Initial Purchaser shall have received, at the time this Agreement is validly existing as a corporation in good standing under executed and at the laws of its jurisdiction of incorporation and has Closing Date, letters dated the corporate power and authority to carry on its business as described in date hereof or the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance reasonably satisfactory to the laws Initial Purchaser from Deloitte & Touche LLP independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchaser with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(k) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(l) The Initial Purchaser shall have received a counterpart, conformed as executed, of the Indenture which it is organized shall have been entered into by the Company, the Guarantors and the Trustee.
(m) The Company and the Guarantors shall have executed the Registration Rights Agreement and the Initial Purchaser shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(n) On or incorporatedprior to the Closing Date, Selmer shall have mailed the notice required in connection with the Redemption.
(o) Neither the Company nor the Guarantors shall have failed at or prior to the Closing Date to perform or comply in any material respect with any of the agreements herein contained and required to be performed or complied with by the Company or the Guarantors, as the case may be, and has at or prior to the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;Closing Date.
(iip) Since the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would date hereof, there shall not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business occurred any material adverse change or its ownership any material adverse development involving or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of concerning the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessableChairman of the Board (as of the date hereof) which, and are ownedin the sole discretion of the Initial Purchaser, directly or indirectly, by the Company, makes it impracticable to the knowledge of such counsel, free and clear of any Lien;
(v) market the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with on the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) manner contemplated in the Offering Memorandum.
(q) Prior to the Closing Date, insofar as such statements constitute the Company and the Guarantors shall have obtained consents and waivers in connection with and amendments to the Credit Agreement relating to the Transactions satisfactory to the Initial Purchaser, in their sole discretion.
(r) Prior to the Closing Date, Selmer and the guarantors party to the Selmer Notes Indenture and the trustee thereunder shall have executed a summary of supplemental indenture to the legal mattersSelmer Notes Indenture satisfactory to the Initial Purchaser, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;its sole discretion.
Appears in 1 contract
Samples: Purchase Agreement (United Musical Instruments Usa Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariesthe Guarantors, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries the Guarantors and (iii) neither the Company nor any of its Subsidiaries the Guarantors shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(y), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a Date. The certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory shall specifically permit Ice, Xxxxxx, Xxxxxxx & Xxxx to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectrely upon it.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Ice, Xxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.Xxxx, counsel for the CompanyCompany and the Guarantors, to the effect that:
(iI) EACH OF THE COMPANY AND THE GUARANTORS HAS BEEN DULY INCORPORATED OR FORMED, AS APPLICABLE, IS VALIDLY EXISTING AS A CORPORATION OR LIMITED LIABILITY COMPANY, AS APPLICABLE, UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION AND HAS THE CORPORATE POWER AND AUTHORITY TO CARRY ON ITS BUSINESS AS DESCRIBED IN THE OFFERING MEMORANDUM AND TO OWN, LEASE AND OPERATE ITS PROPERTIES;
(II) EACH OF THE COMPANY AND THE GUARANTORS IS DULY QUALIFIED AND IS IN GOOD STANDING AS A FOREIGN CORPORATION OR LIMITED LIABILITY COMPANY AUTHORIZED TO DO BUSINESS IN EACH JURISDICTION IN WHICH THE NATURE OF ITS BUSINESS OR ITS OWNERSHIP OR LEASING OF PROPERTY REQUIRES SUCH QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED WOULD NOT HAVE A MATERIAL ADVERSE EFFECT;
(III) ALL THE OUTSTANDING SHARES OF CAPITAL STOCK OF THE COMPANY HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE;
(IV) EXCEPT AS DISCLOSED IN THE OFFERING MEMORANDUM, ALL OF THE OUTSTANDING SHARES OF CAPITAL STOCK AND MEMBERSHIP INTERESTS, AS APPLICABLE, OF EACH OF THE GUARANTORS HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE, AND ARE OWNED BY THE COMPANY, FREE AND CLEAR OF ANY LIEN;
(V) THE SERIES A NOTES HAVE BEEN DULY AUTHORIZED AND, WHEN EXECUTED AND AUTHENTICATED IN ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE AND DELIVERED TO AND PAID FOR BY THE INITIAL PURCHASERS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, WILL BE ENTITLED TO THE BENEFITS OF THE INDENTURE AND WILL BE VALID AND BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS;
(VI) THE SUBSIDIARY GUARANTEES HAVE BEEN DULY AUTHORIZED AND, WHEN THE SERIES A NOTES ARE EXECUTED AND AUTHENTICATED IN ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE AND DELIVERED TO AND PAID FOR BY THE INITIAL PURCHASERS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THE SUBSIDIARY GUARANTEES ENDORSED THEREON WILL BE ENTITLED TO THE BENEFITS OF THE INDENTURE AND WILL BE VALID AND BINDING OBLIGATIONS OF THE GUARANTORS, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS;
(VII) THE INDENTURE HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND EACH GUARANTOR AND IS A VALID AND BINDING AGREEMENT OF THE COMPANY AND EACH GUARANTOR, ENFORCEABLE AGAINST THE COMPANY AND EACH GUARANTOR IN ACCORDANCE WITH ITS TERMS;
(VIII) THE NEW CREDIT FACILITY HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND EACH GUARANTOR AND IS A VALID AND BINDING AGREEMENT OF THE COMPANY AND EACH GUARANTOR, ENFORCEABLE AGAINST THE COMPANY AND EACH GUARANTOR IN ACCORDANCE WITH ITS TERMS;
(IX) THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND THE GUARANTORS;
(X) THE REGISTRATION RIGHTS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND THE GUARANTORS AND IS A VALID AND BINDING AGREEMENT OF THE COMPANY AND EACH GUARANTOR, ENFORCEABLE AGAINST THE COMPANY AND EACH GUARANTOR IN ACCORDANCE WITH ITS TERMS;
(XI) THE ISSUANCE OF THE SERIES B SENIOR NOTES HAS BEEN DULY AUTHORIZED;
(XII) THE STATEMENTS UNDER THE CAPTIONS "REORGANIZATION OF THE COMPANY," "DESCRIPTION OF NEW CREDIT FACILITY," "DESCRIPTION OF NOTES," AND "CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS" IN THE OFFERING MEMORANDUM, INSOFAR AS SUCH STATEMENTS CONSTITUTE A SUMMARY OF THE LEGAL MATTERS, DOCUMENTS OR PROCEEDINGS REFERRED TO THEREIN, FAIRLY PRESENT IN ALL MATERIAL RESPECTS SUCH LEGAL MATTERS, DOCUMENTS AND PROCEEDINGS;
(XIII) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT, THE OTHER OPERATIVE DOCUMENTS AND THE NEW CREDIT FACILITY BY THE COMPANY AND EACH OF THE GUARANTORS, THE COMPLIANCE BY THE COMPANY AND EACH OF THE GUARANTORS WITH ALL PROVISIONS HEREOF AND THEREOF AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY WILL NOT (I) REQUIRE ANY CONSENT, APPROVAL, AUTHORIZATION OR OTHER ORDER OF, OR QUALIFICATION WITH, ANY COURT OR GOVERNMENTAL BODY OR AGENCY (EXCEPT SUCH AS MAY BE REQUIRED UNDER THE SECURITIES OR BLUE SKY LAWS OF THE VARIOUS STATES), (II) CONFLICT WITH OR CONSTITUTE A BREACH OF ANY OF THE TERMS OR PROVISIONS OF, OR A DEFAULT UNDER, THE ARTICLES OF INCORPORATION, ARTICLES OF ORGANIZATION, BY-LAWS OR OPERATING AGREEMENT OF THE COMPANY OR ANY OF THE GUARANTORS OR ANY INDENTURE, LOAN AGREEMENT, MORTGAGE, LEASE OR OTHER AGREEMENT OR INSTRUMENT THAT HAS BEEN IDENTIFIED TO SUCH COUNSEL BY THE COMPANY TO BE MATERIAL TO THE COMPANY AND THE GUARANTORS, TAKEN AS A WHOLE, (III) TO OUR KNOWLEDGE, VIOLATE OR CONFLICT WITH ANY APPLICABLE LAW OR ANY RULE, REGULATION, JUDGMENT, ORDER OR DECREE OF ANY COURT OR ANY GOVERNMENTAL BODY OR AGENCY HAVING JURISDICTION OVER THE COMPANY, ANY OF THE GUARANTORS OR THEIR RESPECTIVE PROPERTY, OR (IV) TO OUR KNOWLEDGE, RESULT IN THE IMPOSITION OR CREATION OF (OR THE OBLIGATION TO CREATE OR IMPOSE) A LIEN UNDER, ANY AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY OR ANY OF THE GUARANTORS IS A PARTY OR BY WHICH THE COMPANY OR ANY OF THE GUARANTORS OR THEIR RESPECTIVE PROPERTY IS BOUND.
(XIV) TO THE BEST OF SUCH COUNSEL'S KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL PROCEEDINGS PENDING OR THREATENED TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS OR COULD BE A PARTY OR TO WHICH ANY OF THEIR RESPECTIVE PROPERTY IS OR COULD BE SUBJECT, WHICH MIGHT RESULT, SINGLY OR IN THE AGGREGATE, IN A MATERIAL ADVERSE EFFECT, OTHER THAN THOSE DISCLOSED IN THE OFFERING MEMORANDUM.
(XV) NEITHER THE COMPANY NOR ANY GUARANTOR IS NOR, AFTER GIVING EFFECT TO THE OFFERING AND SALE OF THE SERIES A NOTES AND THE APPLICATION OF THE NET PROCEEDS THEREOF AS DESCRIBED IN THE OFFERING MEMORANDUM, WILL BE, AN "INVESTMENT COMPANY" AS SUCH TERM IS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED;
(XVI) TO THE BEST OF SUCH COUNSEL'S KNOWLEDGE, EXCEPT AS PROVIDED IN THE REGISTRATION RIGHTS AGREEMENT, THERE ARE NO CONTRACTS, AGREEMENTS OR UNDERSTANDINGS BETWEEN THE COMPANY OR ANY GUARANTOR AND ANY PERSON GRANTING SUCH PERSON THE RIGHT TO REQUIRE THE COMPANY OR SUCH GUARANTOR TO FILE A REGISTRATION STATEMENT UNDER THE ACT WITH RESPECT TO ANY SECURITIES OF THE COMPANY OR SUCH GUARANTOR OR TO REQUIRE THE COMPANY OR SUCH GUARANTOR TO INCLUDE SUCH SECURITIES WITH THE NOTES AND SUBSIDIARY GUARANTEES REGISTERED PURSUANT TO ANY REGISTRATION STATEMENT;
(XVII) IT IS NOT NECESSARY IN CONNECTION WITH THE OFFER, SALE AND DELIVERY OF THE SERIES A NOTES TO THE INITIAL PURCHASERS IN THE MANNER CONTEMPLATED BY THIS AGREEMENT OR IN CONNECTION WITH THE EXEMPT RESALES TO QUALIFY THE INDENTURE UNDER THE TIA;
(XVIII) NO REGISTRATION UNDER THE ACT OF THE SERIES A NOTES IS REQUIRED FOR THE SALE OF THE SERIES A NOTES TO THE INITIAL PURCHASERS AS CONTEMPLATED BY THIS AGREEMENT OR FOR THE EXEMPT RESALES ASSUMING THAT (I) EACH INITIAL PURCHASER IS A QIB OR A REGULATION S PURCHASER, (II) THE ACCURACY OF, AND COMPLIANCE WITH, THE INITIAL PURCHASERS' REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN SECTION 7 OF THIS AGREEMENT, (III) THE ACCURACY OF THE REPRESENTATIONS OF THE COMPANY AND THE GUARANTORS SET FORTH IN THIS AGREEMENT WITH THE EXCEPTION OF THE REPRESENTATION IN SECTION 6(II) HEREOF.
(XIX) SUCH COUNSEL HAS NO REASON TO BELIEVE THAT, AS OF THE DATE OF THE OFFERING MEMORANDUM OR AS OF THE CLOSING DATE, THE OFFERING MEMORANDUM, AS AMENDED OR SUPPLEMENTED, IF APPLICABLE (EXCEPT FOR THE FINANCIAL STATEMENTS AND OTHER FINANCIAL DATA INCLUDED THEREIN, AS TO WHICH SUCH COUNSEL NEED NOT EXPRESS ANY BELIEF) CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. The opinion described in this Section 9(e) shall be rendered to you at the request of the Company has been duly incorporatedand the Guarantors and shall so state therein. In giving such opinion with respect to the matters covered by the last clause of Section 9(e), is validly existing as a corporation Ice, Xxxxxx, Xxxxxxx & Xxxx xxx state that their opinion and belief are based upon their participation in good standing under the laws preparation of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified.
(f) You also shall have received on the Closing Date an opinion (satisfactory to ownyou and counsel for the Initial Purchaser), lease dated the Closing Date, of Siegel, Moses, Schoenstadt & Xxxxxxx, regulatory counsel for the Company and operate its properties; each the Guarantors, with respect to certain regulatory issues in the form attached hereto as Exhibit B. The opinion shall be rendered to you at the request of its Subsidiaries has been duly organized the Company and the Guarantors and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser.
(h) The Initial Purchasers shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Xxxx, Sapper & Xxxxxx and Xxxxx & Xxxxx LLP, both independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(i) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Ice, Xxxxxx, Xxxxxxx & Xxxx relating to certain tax issues in the form of Exhibit C attached hereto.
(j) The Initial Purchasers shall have received an opinion of Michigan counsel with respect to the due authorization, execution and delivery of the Operative Documents by NWS Michigan, Inc. in form and substance satisfactory to the Initial Purchasers.
(k) The Series A Notes shall have been approved by the NASD for trading and to be duly listed in PORTAL.
(l) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture which it is organized shall have been entered into by the Company, the Guarantors and the Trustee.
(m) The Company and the Guarantors shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(n) Neither the Company nor the Guarantors shall have failed at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company or the Guarantors, as the case may be, and has at or prior to the power and authority to carry on its business Closing Date.
(o) The Reorganization shall have occurred as described in the Offering Memorandum and to own, lease and operate its properties;Memorandum.
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ixp) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except New Credit Facility (as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) defined in the Offering Memorandum, insofar as such statements constitute a summary of ) shall have been entered into on substantially the legal matters, documents or proceedings referred to therein, fairly present same terms described in all material respects such legal matters, documents and proceedings;the Offering Memorandum.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers and Parent contained in this Agreement and the Collateral Documents shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the date hereof and at the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Issuers, Parent, or any securities of the Company Issuers or Parent (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuers or any securities of the Company Parent by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the financial condition, financial or otherwise, or the earnings, business, management contractual relationships, management, operations or operations prospects of the Company and its Issuers, Parent or any of the Subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock equity interests or in the long-term debt of the Company Issuers, Parent or any of its the Subsidiaries and (iii) neither the Company nor any of its Issuers, Parent or the Subsidiaries shall not have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your the reasonable judgmentjudgment of the Initial Purchaser, is material and adverse and, in your the reasonable judgmentjudgment of the Initial Purchaser, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You The Initial Purchaser shall have received on the Closing Date (x) a certificate from each of the Issuers and Parent dated the Closing Date, signed in each case by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyIssuers and Parent, as applicable, (i) stating that the representations and warranties of the Issuers and Parent contained in this Agreement are true and correct with the same force and effect as if made on and as of the Closing Date; (ii) confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and clause 9(b) and 9(c) hereof and (iii) stating that each of the Company has Issuers and Parent have complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required on their part to be complied with performed or satisfied on at or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to you the Initial Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Xxxxxxxx & Xxxxxxxx L.L.P.LLP, counsel for Service, as to the matters set forth in Exhibit C hereto.
(f) The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated the Closing Date, of Stoel Rives LLP, special Washington and Oregon counsel, as to the matters set forth in Exhibit D hereto.
(g) The Initial Purchaser shall have received on the Closing Date an opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx LLP, counsel for the CompanyInitial Purchaser, in form and substance reasonably satisfactory to the effect that:Initial Purchaser.
(ih) The Initial Purchaser shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchaser from each of (i) Xxxxx Xxxxxxxx LLP for the twelve month period ended September 30, 2004 and the nine month period ended September 30, 2004 and (ii) Ernst & Young LLP for the years ended December 31, 2002 and December 31, 2003, and for the nine month period ended December 31, 2003, independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in which it is organized or incorporated, as accountants' "comfort letters" to the case may be, Initial Purchaser with respect to the financial statements and has the power and authority to carry on its business as described certain financial information of Parent contained in the Offering Memorandum and to own, lease and operate its properties;Circular.
(iii) The Series A Notes shall have been approved by the Company NASD for trading and duly listed in PORTAL.
(j) The Issuers, Parent, the Trustee and each other party to any of the Operative Documents shall each have executed and delivered the Operative Documents to which each is duly qualified a party and is the Initial Purchaser shall have received fully executed copies thereof. The Operative Documents shall be in good standing as a foreign corporation authorized to do business full force and effect, with the exception of the Series B Notes and the Series B Guarantees, which will not be issued or become effective until the Exchange Offer. The Issuers and Parent shall have received the requisite governmental and regulatory approval in connection with each jurisdiction in which of the nature of its business or its ownership or leasing of property requires such qualification except where Operative Documents and transactions contemplated by the failure Offering Circular to be so qualified would not completed on or before the Closing Date.
(k) Neither the Issuers nor Parent shall have failed at or prior to the Closing Date to perform or comply in any material respect with any of the agreements herein contained and required to be performed or complied with by the Issuers or Parent at or prior to the Closing Date.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Series A Notes or the Guarantees thereof or the consummation of any of the other transactions contemplated by the Operative Documents; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers and Parent, threatened against, the Issuers or Parent before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Circular, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;.
(iiim) all The Stock Purchase Agreement shall be in full force and effect. Xxxxxx shall have designated the outstanding shares of Company to purchase the capital stock of Parent owned by the Company have been duly authorized and validly issued and are fully paid, non-assessable and, Sellers pursuant to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Stock Purchase Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;.
Appears in 1 contract
Samples: Purchase Agreement (Interdent Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a wholeCompany, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term longterm debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries shall not have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in this clause 9(c)(i), 9(c)(ii) or 9(c)(iii9(c), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(w), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Xxxxxx & Xxxxxxxx L.L.P.Xxxxxxx LLP, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, nonassessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiv) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiivi) this Agreement has been duly authorized, executed and delivered by the Company;
(ixvii) The the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xviii) the Series B Senior Notes have been duly authorized;
(xiix) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Management and Directors-- Limitation of Liability, --Consulting and Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes-- Certain Relationships and Related Transactions," "Description of Other Indebtedness," "Certain United States Federal Income Tax ConsequencesConsiderations," "Description of Notes" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Luiginos Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on the Option Closing Date are subject to the satisfaction of each of the following conditions:
(a) a. All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as well as on the date of this Agreement, on the Closing Date and on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) b. On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) c. Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) d. You shall have received on the Closing Date (x) a certificate dated the Closing Date, and on each Option Closing Date, if any, dated such Option Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, Company confirming the matters set forth in Sections 6(w)(i)-(iii6(x), 6(w), 9(a), 9(b) and 9(b9(m) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) e. You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright Schixx Xxxxxx & Xxxxxxxx L.L.P.Xaitx, counsel xxunsel for the Company with respect to opinions (i) through (x), (xii), (xiii), and (xv) through (xix), and of Jamex Xxxx, Xxneral Counsel to the Company, with respect to opinions (xi) and (xiv), to the effect that:
(i) i. each of the Company and its Subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to and own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business properties as described in the Offering Memorandum and Memorandum, except, in the case of a Subsidiary, where the failure to own, lease and operate its propertiesbe in good standing would not have a Material Adverse Effect;
(ii) . the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse EffectDelaware, Georgia, Illinois, Michigan, Washington and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationTexas;
(iii) . all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable andand not subject to any preemptive or similar rights created under the charter or bylaws of the Company or, to the knowledge of such counsel, not subject to any preemptive or similar rightsother agreements binding on the Company;
(iv) . to such counsel's knowledge, all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) v. the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (xA) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (yB) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) . the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (xA) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (yB) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii. the Notes are convertible into Common Stock in accordance with the terms of the Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Offering Memorandum and will be duly authorized for listings on the Nasdaq National Market, subject to notice of official issuance; the Company has the authorized and outstanding capital stock as set forth in the Offering Memorandum; and the stockholders of the Company have no preemptive or similar rights created under the charter or bylaws of the Company or, to the knowledge of such counsel, any other agreement or laws binding on the Company with respect to the Notes or the Common Stock issuable upon the Notes.
viii) . this Agreement has been duly authorized, executed and delivered by the Company;
(ix) . The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (xA) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (yB) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) x. the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other IndebtednessCapital Stock," "Certain United States Federal Income Tax Consequences," and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
xi. neither the Company, nor to the knowledge of such counsel, any of its subsidiaries is in violation of its respective charter or by-laws and, to the best of such counsel's knowledge after due inquiry, neither the Company nor any of its subsidiaries is in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, xii. the execution, delivery and performance of this Agreement and the other Operative Documents by the Company, the compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its Subsidiaries or the indentures, loan agreements, mortgages, leases or other agreements or instruments that have been identified to such counsel including but not limited to those referred to on Schedule B by the Company as being material to the Company and its subsidiaries, taken as a whole ("Material Contracts"), (iii) violate or conflict with any applicable law or any rule or regulation or to such counsel's knowledge any judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its Subsidiaries or their respective property (except that such counsel need not express an opinion with respect to the federal securities laws or other laws, rules, regulations or relating to misrepresentations or fraud), (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under any Material Contract, or (v) result in the termination, suspension, revocation or impairment of any Authorization known to such counsel of the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Purchase Agreement (Antec Corp)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Restricted Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any adverse change, nor shall any notice have been given of any potential or intended adverse change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Memorandum, other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could involving a reasonably be expected to result in a certain prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any adverse change or any adverse development which could involving a reasonably be expected to result in a certain prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(y), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Snelx & Xxxxxxxx L.L.P.Xilmxx X.X.P., counsel for the CompanyCompany and the Guarantors, substantially in the form attached as Exhibit B hereto.
(f) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Akin, Xxmp, Xxraxxx, Xxuex & Xeld, X.L.P., counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the effect that:Initial Purchasers.
(ig) The Initial Purchasers shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Ernst & Young, LLP and Maulxxx & Xenkxxx, xxdependent public accountants, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Restricted Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture which it is organized shall have been entered into by the Company, the Guarantors and the Trustee.
(j) The Company and the Guarantors shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(k) Neither the Company nor the Guarantors shall have failed at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required in any material respect to be performed or complied with by the Company or the Guarantors, as the case may be, and has at or prior to the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;Closing Date.
(iil) The Company shall have acquired the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of Addison Structural Services, Inc. prior to or simultaneously with the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;Closing.
(ivm) all Addison Structural Services, Inc., Addison Steel, Inc. and Quincy Joist Company shall have become parties to this agreement as "Guarantors" pursuant to an assumption agreement in the form of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of Exhibit I hereto which shall be executed by each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture Guarantor and delivered to and paid for by the Initial Purchasers in accordance with Purchaser on the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Schuff Steel Co)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) a. All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) b. On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) c. Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, whole and (ii) there shall not have been any change or any development which could reasonably be expected to result in a change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You d. The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii9(a), 9(a9(b) and 9(b9(c) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You e. The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Stearns Weaver Miller Weissler Alhadxxx & Xxxxxxxx L.L.P.Xixxxxxxn, counsel X.X., xxxxxxx xxxxxxx for the Companyxxx Xxxxany, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum Circular and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Senior Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (xA) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (yB) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, terms except as (xA) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (yB) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xiv) the Series B Notes have this Agreement has been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements , executed and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company delivered by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedingsCompany;
Appears in 1 contract
Samples: Purchase Agreement (Mastec Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes Units under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers and the Note Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company any Issuer or any Note Guarantor or any securities of the Company any Issuer or any Note Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company any Issuer or any Note Guarantor or any securities of the Company any Issuer or any Note Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes Units than that on which the Notes Units were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Memorandum, other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the conditionbusiness, assets, condition (financial or otherwise), results of operations or the earnings, business, management or operations prospects of the Company Issuers and its Subsidiariesthe Note Guarantors, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company Issuers or any of its Subsidiaries the Note Guarantors and (iii) neither any of the Company Issuers nor any of its Subsidiaries the Note Guarantors shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Units on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Presidents and the Chief Executive Officer and President and by the Executive Vice President, Finance Financial Officers of the CompanyIssuers, confirming the matters set forth in Sections 6(w)(i)-(iii6(kk), 9(a) and 9(b) and stating that each of the Company Issuers and the Note Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Cravath, Swaine & Xxxxxxxx L.L.P.Xxxxx, counsel for the CompanyIssuers and the Note Guarantors substantially in the form attached hereto as Exhibit A.
(f) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the effect that:Initial Purchasers.
(ig) The Initial Purchasers shall have received, at the Company has been duly incorporatedtime this Agreement is executed and at the Closing Date, is validly existing as a corporation in good standing under letters dated the laws of its jurisdiction of incorporation and has date hereof or the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing form and substance satisfactory to the Initial Purchasers each of (i) Xxxxxx Xxxxxxxx LLP, (ii) Deloitte & Touche LLP, and (iii) PricewaterhouseCoopers LLP, all of which are independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Units shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received, or receive substantially simultaneously with the closing of the offering of the Units, a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Issuers, the Note Guarantors and the Trustee.
(j) The Company and JLC Learning shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received, or receive substantially simultaneously with the closing of the offering of the Units, an original copy thereof, duly executed by the Issuers and the Note Guarantors.
(k) The Company shall have executed the Unit Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company.
(l) Each of the Issuers and the WRC Stockholders shall have executed the Stockholders Agreement, and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and each of the Issuers and WRC Stockholders.
(m) The Senior Credit Facilities shall have been entered into by the parties thereto, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and of all other documents and agreements entered into in connection therewith. Each condition to the closing contemplated by the Senior Credit Facilities shall have been satisfied or waived. There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the Recapitalization Agreement) no conditions that would constitute a default (or an event that, with notice or the lapse of time or both, would constitute a default) under the laws Senior Credit Facilities. On the Closing Date, the closing under the Senior Credit Facilities shall have been consummated on terms that conform in all material respects to the description thereof in the Offering Memorandum.
(n) All documents relating to the Recapitalization shall have been entered into by the parties thereto, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and of all other documents and agreements entered into in connection therewith. Each condition to the closing of the jurisdiction transactions contemplated by the documents relating to the Recapitalization shall have been satisfied or, with the Initial Purchasers' specific approval, waived. There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement, the Recapitalization Agreement and the Senior Credit Facilities) no condition that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the documents relating to the Recapitalization. Prior to, or simultaneously with, the closing of the Offering, the Recapitalization shall have been consummated on terms that conform in which it is organized all material respects to the description thereof in the Offering Memorandum. The Initial Purchasers shall have received evidence satisfactory to the Initial Purchasers that the Recapitalization has been so consummated.
(o) On the Closing Date, Weekly Reader and the Note Guarantors shall have approved, adopted, ratified and confirmed the execution, delivery and performance of this Agreement by the Company and JLC Learning, and the Initial Purchasers shall have received a counterpart of this Agreement executed by Weekly Reader and each Note Guarantor as parties hereto.
(p) The Issuers and Note Guarantors shall not have failed in any material respect at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Issuers or the Note Guarantors, as the case may be, and has at or prior to the power and authority Closing Date.
(q) The Initial Purchasers shall have received, addressed to carry on its business as the Initial Purchasers, a solvency certificate of the Chief Financial Officers of the Issuers that is identical to the solvency certificate required to be delivered to the lenders under the Senior Credit Facilities.
(r) The Initial Purchasers shall have received executed copies of each of the employment agreements described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions caption "Business--Pending Acquisitions," Management- Employment Agreements."--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (World Almanac Education Group Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the --------------------------------------------- Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable or inadvisable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(v), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright Xxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.Xxxxx LLP, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiiv) the Notes are convertible into Common Stock in accordance with the terms of the Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable, will conform to the description thereof contained in the Offering Memorandum; the Company has the authorized and outstanding capital stock as set forth in the Offering Memorandum; and the stockholders of the Company have no pre-emptive or similar rights with respect to the Notes or the Common Stock issuable upon the Notes.
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(ixvi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xivii) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of DistributionRegistration Rights" (other than statements in the "Plan of Distribution" furnished any reference therein to the Company by the Initial Purchaserstax matters, as to which no opinion is renderedexpressed) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
(viii) to the best of such counsel's knowledge after due inquiry, the Company is not in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company is a party or by which the Company or its property is bound;
(ix) the execution, delivery and performance of this Agreement and the other Operative Documents by the Company, the compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company, or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company or its property;
(x) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the net proceeds thereof as described in the Offering Memorandum, will not be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended;
(xi) the Indenture complies as to form in all material respects with the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. It is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Indenture under the TIA;
(xii) no registration under the Act of the Securities is required for the sale of the Securities to the Initial Purchasers as contemplated by this Agreement or for the Exempt Resales assuming (i) the accuracy of, and compliance with, the Initial Purchasers' representations and agreements contained in Section 7 of this Agreement, and (ii) the accuracy of the representations of the Company set forth in Sections 6(w) and 6(x) of this Agreement; and
(xiii) no facts have come to such counsel's attention which lead it to believe that, as of the date of the Offering Memorandum or as of the Closing Date or the Option Closing Date, as the case may be, the Offering Memorandum and any information incorporated by reference therein, as amended or supplemented, if applicable (except for the financial statements and other financial data included or incorporated by reference therein, as to which such counsel need not express any belief) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The opinion of Xxxxxx, Xxxxxxx & Xxxxx LLP described in Section 9(e) above shall be rendered to you at the request of the Company and shall so state therein. In giving such opinion with respect to the matters covered by Section 9(e)(xiii), Xxxxxx, Xxxxxxx & Xxxxx LLP may state that their opinion and belief are based solely upon their participation in the preparation of the Offering Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified.
(f) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Xxxxxxx X. Xxxxx, Esq., Vice President and General Counsel of the Company, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, free and clear of any Lien;
(v) the Notes have been duly authorized and executed by the Company;
(vi) the Indenture has been duly authorized and executed by the Company;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Company is not in violation of its charter or by-laws, and the execution, delivery and performance of this Agreement and the other Operative Documents by the Company, the compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, (ii) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, (iii) result in the termination, suspension or revocation of any Authorization (as defined above) of the Company or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization, or (iv) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its subsidiaries or their respective property;
Appears in 1 contract
Samples: Purchase Agreement (Health Management Associates Inc)
Conditions of Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are is subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement and the other Operative Documents shall be true and correct in all material respects respects, except where otherwise qualified, on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by each of the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii9(a), 9(a) and 9(b) and 9(c) and stating that each of that, to such Officer's reasonable knowledge and belief, the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Weil, Gotshal & Xxxxxxxx L.L.P.Xxxxxx LLP, counsel for the Company, to the effect that:
(i) the Company has been is a corporation duly incorporated, is validly existing as a corporation and in good standing under the laws of its jurisdiction states of incorporation and has the all requisite corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, properties and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its propertiesnow being conducted;
(ii) the Company is has all requisite corporate power and authority to execute and deliver the Series A Notes delivered on the Closing Date, the Indenture, the Registration Rights Agreement and this Agreement (collectively, the "Note Documents") and to perform its obligations thereunder. The execution, delivery and performance of the Note Documents by the Company and the consummation by the Company of the transactions contemplated thereby have been duly qualified authorized by all necessary corporate action on the part of the Company. The Note Documents have been duly and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which validly executed and delivered by the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationCompany;
(iii) all the outstanding shares issuance of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have delivered on the Closing Date has been duly authorized andby all necessary corporate action on the part of the Company. The Series A Notes delivered on the Closing Date, when duly executed by the Company and authenticated by the Trustee in accordance with the provisions terms of the Indenture and duly delivered to and paid for by the Initial Purchasers against receipt of payment therefor in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by their terms, subject to applicable bankruptcy, insolvency or insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generallyand remedies generally and subject, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable as to enforceability, to general principles of general applicabilityequity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity);
(viiiv) assuming the due authorization, execution and delivery thereof by the Trustee (in the case of the Indenture) and the Initial Purchaser (in the case of the Registration Rights Agreement), each of the Indenture has been duly authorizedand the Registration Rights Agreement constitutes the legal, executed and delivered by the Company and is a valid and binding agreement obligation of the Company, enforceable against the Company and it in accordance with its terms except as (x) the enforceability thereof may be limited by terms, subject to applicable bankruptcy, insolvency or insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (yregardless of whether enforcement is sought in a proceeding at law or in equity) and subject to the qualification that rights of acceleration to indemnification and contribution under the availability of equitable remedies Registration Rights Agreement may be limited by equitable principles federal or state securities laws or public policy relating thereto;
(v) the issuance of general applicabilitythe Series B Notes to be delivered in connection with the consummation of the Exchange Offer has been duly authorized by all necessary corporate action on the part of the Company;
(vi) the execution and delivery of the Note Documents, the consummation of the transactions contemplated thereby and compliance by the Company with the provisions thereof will not conflict with, constitute a default under or violate (i) any of the terms, conditions or provisions of the certificate of incorporation or bylaws of the Company, (ii) any of the terms, conditions or provisions of any material document, agreement or other instrument to which the Company is a party or by which it is bound of which we are aware, (iii) any New York, Delaware corporate or federal law or regulation (other than federal and state securities or blue sky laws, as to which such counsel need not express any opinion in this paragraph), or (iv) any judgment, writ, injunction, decree, order or ruling of any court or governmental authority binding on the Company of which we are aware;
(vii) no consent, approval, waiver, license or authorization or other action by or filing with any New York, Delaware corporate or federal governmental authority is required in connection with the execution and delivery by the Issuers, to the extent a party thereto, of the Note Documents or the consummation by the Company of the transactions contemplated thereby, except for (i) the applicable requirements of federal and state securities or blue sky laws, as to which such counsel need not express any opinion in this paragraph) and (ii) those already obtained and which are in full force and effect;
(viii) to such counsel's knowledge, there is no litigation, proceeding or governmental investigation pending or overtly threatened against the Company that relates to the any of the transactions contemplated by this Agreement has been duly authorized, executed and delivered by the CompanyAgreement;
(ix) The to such counsel's knowledge, there is no material document, agreement or other instrument to which the Company is a party (other than the Registration Rights Agreement has been duly authorized, executed and delivered by Agreement) granting any person the right to require the Company and is to file a valid and binding agreement registration statement under the Securities Act with respect to any securities of the Company, enforceable against Company or to require the Company in accordance to include such securities with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilitySeries A Notes registered pursuant to any Registration Statement;
(x) the Company is not, and after giving effect to the offering and sale of the Series B A Notes have been duly authorizedin accordance with the terms of this Agreement and the application of the net proceeds thereof as described in the Offering Memorandum under the caption "Use of Proceeds," will not be, an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(xi) the statements Indenture and the Series A Notes delivered on the Closing Date conform in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," caption "Description of Senior Subordinated Notes," "Description ;
(xii) assuming that the representations and warranties of Other Indebtedness," "Certain United States Federal Income Tax Consequences" the Initial Purchaser contained in this Agreement are true, correct and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company complete and assuming compliance by the Initial PurchasersPurchaser with its covenants contained in this Agreement, as it is not necessary in connection with the offer, sale and delivery of the Series A Notes delivered on the Closing Date to which no opinion is renderedthe Initial Purchaser pursuant to this Agreement or the resales of such Series A Notes by the Initial Purchaser in the manner contemplated by this Agreement to register such Series A Notes under the Securities Act or to qualify the Indenture under the TIA;
(xiii) all of the outstanding shares of the Company's capital stock are duly authorized, validly issued, fully paid and non-assessable, and have not been issued in violation of any preemptive rights pursuant to law or in the Company's certificate of incorporation; and
(xiv) based on the assumptions and subject to the qualifications set forth therein, the discussion set forth under the heading "Certain U.S. Federal Tax Considerations for Non-U.S. Holders" in the Offering Memorandum, insofar as such statements constitute a summary it relates to legal conclusions and matters of law, accurately describes the material United States federal income tax consequences of the legal mattersacquisition, documents ownership and disposition of Notes by an initial beneficial owner of Notes that, for U.S. federal income tax purposes, is not a "U.S. person." In addition, such counsel shall state that it has participated in conferences with directors, officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchaser and representatives of counsel for the Initial Purchaser, at which conferences the contents of the final Offering Memorandum and related matters were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or proceedings fairness of the statements contained in the final Offering Memorandum (except to the extent specified in clause (xi) above), no facts have come to such counsel's attention which lead such counsel to believe that the final Offering Memorandum, as of the date of the final Offering Memorandum and the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statement contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel expresses no view with respect to the financial statements and related notes, the financial statement schedules, the assumptions and the other financial and accounting data included in the final Offering Memorandum). The opinion of Weil, Gotshal & Xxxxxx LLP described in Section 9(e) above shall be rendered to you at the request of the Company and shall so state therein. In giving such opinion with respect to the matters covered by Section 9(e)(xxiii), Weil, Gotshal & Xxxxxx LLP may state that their opinion and belief are based upon their participation in the preparation of the Offering Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified.
(f) The Initial Purchaser shall have received on the Closing Date an opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof and the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchaser from Price Waterhouse L.L.P., independent public accountants for the Company and, in each case containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchaser with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Series A Notes shall have been approved by the NASD for trading, and duly listed in, PORTAL.
(i) The Initial Purchaser shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights Agreement and the Initial Purchaser shall have received an original copy thereof, duly executed by the Company.
(k) The Company shall have executed this Agreement and the Initial Purchaser shall have received an original copy thereof, duly executed by the Company.
(l) Xxxxxx & Xxxxxxx shall have been furnished with such documents, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to thereinin this Section 9 and in order to evidence the accuracy, fairly present completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(m) Prior to the Closing Date, the Company shall have furnished to the Initial Purchaser such legal mattersfurther information, certificates and documents as the Initial Purchaser may reasonably request.
(n) The Company shall not have failed at or prior to the Closing Date to perform or comply with any of the agreements herein contained and proceedings;required to be performed or complied with by the Company at or prior to the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Aki Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable the Initial Purchasers' judgment, is material and adverse and, in your reasonable the Initial Purchasers' judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(hh), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Xxxxxxxxxx Xxxxxxx & Xxxxxxxx L.L.P.Xxxxx LLP, counsel for the CompanyCompany and the Guarantors, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporatedincorporated or formed, is validly existing as a corporation corporation, limited liability company or limited partnership in good standing under the laws of its jurisdiction of incorporation or formation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to owncorporate, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the limited partnership power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation or entity authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, owned by the Company, to the knowledge of such counsel, free and clear of any Lien; except with respect to Xxxxxx Envelope Holdings, Inc. which has a series of non-voting common stock outstanding, 10% of which are owned by non-affiliates of the Company;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had Guarantees have been duly authorized and validly executed and delivered by the corporate rightGuarantors and, power when the Series A Notes are executed and authority authenticated in accordance with the provisions of the Indenture and delivered to execute and deliver paid for by the Xxxxxxxxx Acquisition Agreement Initial Purchasers in accordance with the terms of this Agreement, the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a will be valid and binding agreement obligations of the CompanyGuarantors, enforceable against the Company in accordance with its their terms except as (ax) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, generally and (by) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and the Guarantors;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a valid and binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Senior Notes have been duly authorizedauthorized by the Company and the Guarantees to be endorsed on the Series B Notes have been duly authorized by the Guarantors;
(xi) when the Series B Senior Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered in exchange for Series A Notes in accordance with the Indenture and the Exchange Offer, they will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xii) when the Series B Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered in exchange for Series A Notes in accordance with the Indenture and the Exchange Offer, the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Guarantors, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xiii) the statements under the captions "Business--Pending AcquisitionsRisk Factors," "--Operations--NYSE Rules Governing Our Specialist ActivitiesManagement's Discussion and Analysis of Financial Condition and Results of Operations," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated the Company's Capital Stock," "Description of Notes," "Description of Other Certain Indebtedness," "Certain United States Federal Income Tax ConsequencesNotice to Investors" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Mail Well Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Restricted Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of Fincx xxx the Company and the Company's subsidiaries contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of Fincx xx the Company or any securities of Fincx xx the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of Fincx xx the Company or any securities of Fincx xx the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Secured Notes than that on which the Secured Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any adverse change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any material adverse change or any development which could reasonably be expected to result in involving a prospective material adverse change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries and (iii) neither Fincx xxx the Company nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchaser shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Secretary of both Fincx xxx the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(x), 9(a) and 9(b9(c) and stating that each of Fincx xxx the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Gardere Wynnx Xxxxxx & Xxxxxxxx L.L.P.Xiggx, X.L.P., counsel for Fincx xxx the Company, to the effect that:
(i) each of Fincx xxx the Company has been duly incorporatedincorporated or formed, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation Delaware and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Restricted Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of Fincx, xxforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(iii) the Guarantee of the Company has been duly authorized and, when the Restricted Notes are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Guarantee endorsed thereon will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiv) the Indenture has been duly authorized, executed and delivered by Fincx xxx the Company and is a valid and binding agreement of Fincx xxx the Company, enforceable against Fincx xxx the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiv) this Agreement has been duly authorized, executed and delivered by Fincx xxx the Company;
(ixvi) The each of Fincx xxx the Company has duly authorized the Collateral Documents to which it is a party, and when each of Fincx and the Company has duly executed and delivered the Collateral Documents to which it is a party (assuming due execution and delivery thereof by the Trustee, the Collateral Agent and the Escrow Agent), each of the Collateral Documents to which such entity is a party will be a legally valid and binding obligation of each of Fincx xxx the Company enforceable against each in accordance with its terms, except as (i) bankruptcy, insolvency, fraudulent transfer or other similar laws affecting creditors' rights generally, and (ii) the enforceability thereof may be limited by rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Registration Rights Agreement has been duly authorized, executed and delivered by Fincx xxx the Company and is a valid and binding agreement of Fincx xxx the Company, enforceable against Fincx and the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability and (z) the enforceability of the indemnification provisions thereof may be limited by federal and state securities laws;
(xviii) the Series B Exchange Notes have been duly authorized;
(xiix) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesRisk Factors," "Description of the Secured Notes, " "Description of the New Senior Subordinated Notes," "Description of Other Certain Indebtedness," "Certain United States Federal Income Tax ConsequencesConsiderations for Non-U.S. Holders," and "Description of Security for the Secured Notes," "Plan of Distribution," (other than statements "Notice to Investors in the New Senior Notes" and "Plan of DistributionNotice to Investors in the Secured Notes," furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (R&b Falcon Corp)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement on the Closing Date are subject to the satisfaction satisfaction, or waiver by the Initial Purchaser, of each of the following conditions:
(a) All the representations and warranties of the Company Issuer and the Guarantors contained in this Agreement and in each of the Operative Documents that are not modified by materiality or Material Adverse Effect shall be true and correct in all material respects respects, and all of the representations and warranties of the Issuer contained in this Agreement that are modified by materiality or Material Adverse Effect shall be true and correct, in each case, as of the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Issuer and each other party to the Operative Documents (other than the Initial Purchaser) shall have performed all covenants and agreements, in all material respects, and satisfied all conditions, in all material respects, on its part to be performed or satisfied at or prior to the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company Issuer or any of its Subsidiaries or any of its or their respective securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "“nationally recognized statistical rating organization" ” as such term is defined for purposes of Rule 436(g)(2) under the Act, and (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuer or any securities of the Company its Subsidiaries by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketedorganization.
(c) Since the respective dates as of which information is given in the Disclosure Package and the Final Offering Memorandum Circular other than as set forth disclosed in or contemplated by the Disclosure Package and the Final Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the conditionproperties, condition (financial or otherwise), or the earnings, business, management or operations of the Company and Issuer or any of its Subsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock equity interests or in the long-term debt of the Company Issuer or any of its Subsidiaries and (iii) neither the Company Issuer nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your the reasonable judgmentjudgment of the Initial Purchaser, is material and adverse and, in your the reasonable judgmentjudgment of the Initial Purchaser, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Disclosure Package and the Final Offering MemorandumCircular.
(d) You shall have received on the Closing Date (x) a certificate from the Issuer and from each of the Guarantors dated the Closing Date, as of that date and signed in each case by the Chairman, Chief Executive Officer and the President and by or the Executive Vice President, Finance President and the Chief Financial Officer of the CompanyIssuer or Guarantor, as applicable,
(i) stating that the representations and warranties of the Issuer and the Guarantors, as applicable, contained in this Agreement that are not modified by materiality or Material Adverse Effect are true and correct, in all material respects, and all representations and warranties of the Issuer and the Guarantors, as applicable, contained in this Agreement that are modified by materiality or Material Adverse Effect are true and correct, with the same force and effect as if made on and as of the Closing Date;
(ii) confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and clauses 9(b) and 9(c) hereof;
(iii) stating that the Issuer and each of the Company Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required on its part to be complied with performed or satisfied on at or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse EffectDate; and
(iiiv) each stating that they have carefully examined the Disclosure Package and the Final Offering Circular and, in their opinion, since the date of the Company Disclosure Package and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and Final Offering Circular no event has occurred (including the receipt of any notice from any authority which should, under applicable securities laws, have been set forth in a supplement or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome amendment to the Company or any of its Subsidiaries; except where such failure to be valid Disclosure Package and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectFinal Offering Circular.
(e) You shall have received on the Closing Date a certificate from the Issuer and from each of the Guarantors, as applicable, dated as of such date and signed in each case by the Secretary of the Issuer or Guarantor certifying (i) its Charter Documents (ii) the resolutions adopted by its Board of Directors or managers or managing members, as applicable, approving the transactions contemplated by this Agreement, the Disclosure Package, the Final Offering Circular and the Operative Documents, as applicable and (iv) as to the incumbency of its officers executing the Operative Documents.
(f) You shall have received on the Closing Date an opinion (subject to customary qualifications, limitations and exceptions and reasonably satisfactory to you the Initial Purchaser and counsel for the Initial PurchasersPurchaser), dated as of such date of MxXxxxxxx Will & Exxxx LLP, counsel for the Issuer, substantially to the effect set forth in Exhibit A attached hereto.
(g) You shall have received on the Closing Date an opinion (subject to customary qualifications, limitations and exceptions and reasonably satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated as of such date of Rxxxxx X. Xxxxxxx, Xx., P.C., Virginia counsel for the Issuer, substantially to the effect set forth in Exhibit B attached hereto.
(h) You shall have received on the Closing Date an opinion (subject to customary qualifications, limitations and exceptions and reasonably satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated as of such date of Rxxxxx X. Xxxx , North Carolina counsel for the Issuer, substantially to the effect set forth in Exhibit C attached hereto.
(i) You shall have received on the Closing Date an opinion (subject to customary qualifications, limitations and exceptions and reasonably satisfactory to the Initial Purchaser and counsel for the Initial Purchaser), dated as of such date of Kasowitz, Benson, Txxxxx & Fxxxxxxx LLP, special litigation counsel for the Issuer, substantially to the effect set forth in Exhibit D attached hereto.
(j) You shall have received on the Closing Date an opinion, dated as of such date, of Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchaser, reasonably satisfactory to the Initial Purchaser.
(k) You shall have received on the date of this Agreement with respect to the Disclosure Package and on the Closing Date with respect to the Final Offering Circular letters dated the date hereof and dated the Closing Date in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser from PricewaterhouseCoopers LLP, independent public accountants, with respect to the Issuer and Dxxxxxx Xxxxxxx Realty, LLC and Wxxxxx LLP with respect to Koa Investors, LLC (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the SEC and (ii) containing the information and statements of the type ordinarily included in accountants’ “comfort letters” to the Initial Purchaser with respect to the financial statements and certain financial information contained in or incorporated by reference into the Final Offering Circular.
(l) The Notes shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD related to trading in the PORTAL market.
(m) The Issuer, the Guarantors and each other party to the Operative Documents and the Credit Facility (other than the Initial Purchaser) shall have executed and delivered the Operative Documents and the Credit Facility in form and substance satisfactory to the Initial Purchaser and the Initial Purchaser shall have received fully executed copies thereof. The Operative Documents shall be in full force and effect as of the Closing Date and shall conform to the descriptions thereof contained in the Disclosure Package and the Final Offering Circular. The Issuer shall have received the requisite governmental and regulatory approval in connection with each of the Operative Documents and transactions contemplated by the Disclosure Package and the Final Offering Circular to be completed on or before the Closing Date.
(n) The Initial Purchaser shall have performed a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices in which Uniform Commercial Code financing statements or other filings or recordations should be made to evidence or perfect (with the priority required under the Collateral Documents) security interests in all of the Collateral, and such search shall reveal no security interest, mortgage, pledge, lien, encumbrance, claim or equity that is not terminated on or before the Closing Date, other than liens permitted by the Indenture and the Collateral Documents.
(o) All documents and agreements shall have been filed, and other actions shall have been taken, as may be required by the Issuer and the Secured Guarantors to perfect the Security Interests of Fulbright & Xxxxxxxx L.L.P.the Trustee and to accord the Trustee the priorities over other creditors as contemplated by the Final Offering Circular and the Operative Documents. All consents to assignment of documents and agreements required by the Operative Documents shall have been executed by the third parties named therein.
(p) The Issuer and the Guarantors shall not have failed in any material respect at or prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Issuer and the Guarantors at or prior to the Closing Date.
(q) No action shall have been taken and no statute, counsel for rule, regulation or order shall have been enacted, adopted or issued by any Governmental Authority which would, as of the CompanyClosing Date, prevent the issuance of the Notes or the consummation of any of the other transactions contemplated by the Operative Documents; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws knowledge of the jurisdiction Issuer, threatened against, the Issuer before any court or arbitrator or any Governmental Authority or an official thereof that, if adversely determined, would be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Disclosure Package or the Final Offering Circular, or any amendment or supplement thereto, or which it is organized or incorporated, as the case may be, and has the power and authority would be expected to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;.
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ixr) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes Issuer shall have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by Initial Purchaser and counsel to the Initial PurchasersPurchaser such other certificates, opinions or other documents as to which no opinion is rendered) they may have reasonably requested and as are customary in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;transactions contemplated by this Agreement.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and on the Closing Date, respectively.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum Circular other than as set forth in or contemplated by the Offering Memorandum Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in a change in the financial condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, and (ii) there shall not have been any change or any development which could reasonably be expected to result in a change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your the Initial Purchasers' reasonable judgment, is material and adverse and, in your the Initial Purchasers' reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering MemorandumCircular.
(d) You The Initial Purchasers shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Treasurer of the CompanyCompany and the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect9(c).
(e) You The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to you the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Dechert Price & Xxxxxxxx L.L.P.Xxxxxx, counsel for the CompanyCompany and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the federal laws of its jurisdiction of incorporation the United States and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;State of New York.
(iif) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is the Guarantors, substantially to the effect set forth in good standing and authorized Exhibit C hereto. In providing such opinion, such counsel shall opine as to do business in each foreign jurisdiction in which the nature laws of its business or its ownership or leasing the State of property requires such qualification;Nevada.
(iiig) all The Initial Purchasers shall have received on the outstanding shares of capital stock of the Company have been duly authorized Closing Date an opinion (in form and validly issued and are fully paid, non-assessable and, substance satisfactory to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled and counsel to the benefits Initial Purchasers), dated the Closing Date, of the Indenture and will be valid and binding obligations of the CompanyHolme, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcyXxxxxxx & Xxxx LLP, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority Colorado counsel to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement each of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;the
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Allied and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its Subsidiaries subsidiaries and (iii) neither the Company Allied nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Latham & Xxxxxxxx L.L.P.Watkins, counsel for the CompanyCompany and the Guarantors, to the effect that:xxxxxx sex xxxxx on Exhibit A attached hereto and an opinion of Steven Helm, Vice President and General Counsel of the Company to the xxxxxx xxx forth on Exhibit B attached hereto. In addition, you shall have received opinions (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of counsel to the Company and the Guarantors (satisfactory to you and counsel for the Initial Purchasers) as to such matters as you may reasonably request with respect to Guarantors organized outside the states of New York and Delaware which are identified as Significant Subsidiaries (within the meaning of Rule 1-02 of Regulation 5-X under the Act) in an officer's certificate addressed to you and dated the Closing Date. The opinion of Latham & Watkins described in Section 9(e) above shall be rendered to xxx xt txx xxxxest of the Company and the Guarantors and shall so state therein.
(if) The Initial Purchasers shall have received on the Company has been duly incorporatedClosing Date an opinion, dated the Closing Date, of Cravath, Swaine & Moore, counsel for the Initial Purchasers, in form and substance reasxxxxxy satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this Agreement is validly existing as a corporation in good standing under executed and at the laws of its jurisdiction of incorporation and has Closing Date, letters dated the corporate power and authority to carry on its business as described in date hereof or the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporationClosing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from Arthur Andersen LLP, indxxxxxxnx xxxxxx accountants, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture, including all supplements thereto relating to the Series A Notes, which it is organized shall have been entered into by the Company, the Guarantors and the Trustee.
(j) The Company and the Guarantors shall have executed the Registration Rights Agreement, and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(k) Neither the Company nor the Guarantors shall have failed at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company or the Guarantors, as the case may be, at or prior to the Closing Date.
(l) The Company shall have amended the credit agreement, dated as of July 21, 1999, as amended on January 25, 2001, among the Company, Allied, the lenders party thereto, The Chase Manhattan Bank, as administrative agent and has the power collateral trustee (as so amended, the "Credit Agreement") to (i) permit the Company and authority the Guarantors to carry on its business as described in incur the Offering Memorandum debt under the Notes and the Guarantees and to own, lease secure the Notes and operate its properties;
Guarantees with the Collateral and (ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
change certain financial covenants (iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;AMENDMENT").
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Allied and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its Subsidiaries subsidiaries and (iii) neither the Company Allied nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;it
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any Guarantor or any securities of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a material and adverse prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a material and adverse prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the CompanyCompany and each of the Guarantors, confirming the matters set forth in Sections 6(w)(i)-(iii6(y), 9(a) and 9(b) and stating that each of the Company and the Guarantors has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of Fulbright Portxx & Xxxxxxxx L.L.P.Xedgxx, X.L.P., counsel for the CompanyCompany and the Guarantors, to the effect that:set forth in Exhibit B hereto.
(if) The Initial Purchasers shall have received an opinion of Venezuelan counsel to the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described substantially in the Offering Memorandum form attached as Schedule D hereto.
(g) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Akin, Xxmp, Xxraxxx, Xxuex & Xeld, X.L.P., counsel for the Initial Purchasers, in form and substance reasonably satisfactory to ownthe Initial Purchasers.
(h) The Initial Purchasers shall have received, lease at the time this Agreement is executed and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as at the case may be, and is validly existing as a limited partnershipClosing Date, a limited liability company letter dated the date hereof or a corporationthe Closing Date, as the case may be, in good standing under form and substance satisfactory to the laws Initial Purchasers from KPMG Peat Marwick LLP, independent public accountants, containing the information and statements of the jurisdiction type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(i) The Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(j) The Initial Purchasers shall have received a counterpart, conformed as executed, of the Indenture which it is organized shall have been entered into by the Company, the Guarantors and the Trustee.
(k) The Company and the Guarantors shall have executed the Registration Rights Agreement and the Initial Purchasers shall have received an original copy thereof, duly executed by the Company and the Guarantors.
(l) Neither the Company nor the Guarantors shall have failed at or incorporatedprior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company or the Guarantors, as the case may be, and has at or prior to the power and authority to carry on its business Closing Date.
(m) The Company shall have received any approvals or consents from the lenders under the Bank Credit Facility (as described defined in the Offering Memorandum and Memorandum) necessary in order to own, lease and operate its properties;consummate the issuance of Notes contemplated hereby.
(iin) The Company shall have received the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which requisite consent from the nature holders of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except (as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) defined in the Offering Memorandum) to issue the Second Supplemental Indenture (the "Series A Supplemental Indenture") to the Indenture, insofar as dated June 27, 1997, governing the Series A Notes, and shall have entered into the Series A Supplemental Indenture with the trustee under such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;indenture.
Appears in 1 contract
Samples: Purchase Agreement (Grey Wolf Inc)
Conditions of Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase the Series A Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions:.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries subsidiaries and (iii) neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the ChairmanXxxx X. Xxxxxx and Xxxxx X. Xxxxx, in their capacities as President and Chief Executive Officer Officer, and Executive Vice President and by the Executive Vice PresidentChief Financial Officer, Finance respectively, of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(dd), 9(a) and 9(b) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each caseOption Closing Date, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effectcase may be.
(e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Fulbright Gray Xxxx Xxxx & Xxxxxxxx L.L.P.Freidenrich LLP, counsel for the Company, or of foreign counsel to the Company with respect to certain foreign subsidiaries, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;.
(ii) each of the Company and its subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effectmaterial adverse effect on the business, prospects, financial condition or results of operations of the Company and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualificationsubsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, stock of each of the Company's Subsidiaries subsidiaries have been duly authorized and validly issued and are fully paid and non-assessableassessable and, and to such counsel's knowledge, are owned, directly or indirectly, owned of record by the Company, to the knowledge of such counsel, free and clear of any Lien;
(viv) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiv) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiivi) the Notes are convertible into Common Stock in accordance with the terms of the Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable, will conform to the description thereof contained in the Offering Memorandum and will be duly authorized for listing on the NASDAQ National Market, subject to notice of official issuance; the Company has the authorized capital stock as set forth in the Offering Memorandum; and the stockholders of the Company have no pre-emptive or, to the knowledge of such counsel, similar rights with respect to the Notes or the Common Stock issuable upon the conversion of the Notes;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(ixviii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xiix) the statements under the captions "Business--Pending Acquisitions," Business Technology Licensing"--Operations--NYSE Rules Governing Our Specialist Activities," , "Business--Regulatory Business Patents and Proprietary Technologies", "Management Limitations on Liability and Indemnification Matters," "Employment Agreements and Noncompetition Agreements," Management Stock Option Plans"Incentive Awards to Our Employees, "Management Employee Stock Ownership Plan", "Management 1998 Employee Stock Purchase Plan", "Management Section 401(k) Plan," "Description of Senior Subordinated Notes," "Description of Other Indebtedness,Capital Stock" and "Summary of Certain United States Federal Income Tax ConsequencesConsiderations" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (Invitrogen Corp)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes Units under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company Issuers contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company either Issuer or any securities of the Company either Issuer (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g)(2) under the Securities Act), (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company either Issuer or any securities of the Company either Issuer by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company Holdings and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any change or any development which could reasonably be expected to result in involving a prospective change in the capital stock or in the long-term debt of the Company either Issuer or any of its Subsidiaries their subsidiaries and (iii) neither of the Company Issuers nor any of its Subsidiaries their subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgmentthe judgment of the Initial Purchaser, is material and adverse and, in your reasonable judgmentthe judgment of the Initial Purchaser, makes it impracticable to market the Series A Notes Units on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Chief Financial Officer of the Companyeach Issuer, confirming the matters set forth in Sections 6(w)(i)-(iii6(cc), 9(a), 9(b) and 9(b9(c) and stating that each of the Company such Issuer has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to you the Initial Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright & Xxxxxxxx L.L.P.Kennxxx X. Xxxx, counsel Xxneral Counsel for the CompanyIssuers, to the effect that:
(i) the Company each Issuer has been duly incorporated, incorporated and is validly existing in good standing under the laws of its jurisdiction of organization and has the requisite power to enter into the Operative Documents to which it is a party;
(ii) all the outstanding shares of capital stock of Insilco are duly authorized and validly issued and are fully paid and non-assessable and have not been issued in violation of any preemptive rights pursuant to law or Insilco's certificate of incorporation;
(iii) all the shares of capital stock of Holdings outstanding prior to the Mergers and the Merger Financing (as such terms are defined in the Offering Memorandum), and any shares of capital stock of Holdings issued subsequent to the Mergers and prior to the date hereof, are duly authorized and validly issued and, to such counsel's knowledge, fully paid and non-assessable and have not been issued in violation of any preemptive rights pursuant to law or Holding's certificate of incorporation;
(iv) each Significant Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has the all requisite corporate power and authority to own its properties and to carry on its business as described in the Offering Memorandum now being conducted. Each Issuer and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and Significant Subsidiary is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is corporation duly qualified to transact business and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which where the nature character of its business or its ownership or leasing of property activities requires such qualification qualification, except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(ivv) all of the outstanding shares of the capital stock, membership interests or partnership interests, as the case may be, stock of each of the CompanySignificant Subsidiary are duly authorized, validly issued, and, to such counsel's Subsidiaries have been duly authorized and validly issued and are knowledge, fully paid and non-assessablenonassessable, and are owned, directly have not been issued in violation of any preemptive rights pursuant to law or indirectly, by the Company, to the knowledge in such certificate of incorporation of such counselSignificant Subsidiary, free and clear of any Lien;
(v) the Series A Notes have been duly authorized and, when executed and authenticated in accordance with the provisions all of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits outstanding shares of the Indenture and will be valid and binding obligations capital stock of the Companyeach Significant Subsidiary are owned by Insilco, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the Series B Notes have been duly authorized;
(xi) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our Employees," "Description of Senior Subordinated Notes," "Description of Other Indebtedness," "Certain United States Federal Income Tax Consequences" and "Plan of Distribution" (other than statements in the "Plan of Distribution" furnished to the Company by the Initial Purchasershowever, as to which no opinion is rendered) set forth in the Offering Memorandum, insofar all of such shares have been pledged to Insilco's lenders under the Existing Credit Facility (as such statements constitute a summary of term is defined in the legal matters, documents or proceedings referred Offering Memorandum) and are expected to therein, fairly present in all material respects such legal matters, documents and proceedings;be pledged to Insilco's
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Restricted Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and its subsidiaries contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Memorandum other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any adverse change or any development which could reasonably be expected to result in involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiariessubsidiaries, taken as a whole, (ii) there shall not have been any material adverse change or any development which could reasonably be expected to result in involving a prospective material adverse change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries shall not have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable judgment, is material and adverse and, in your reasonable judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering Memorandum.
(d) You The Initial Purchaser shall have received on the Closing Date (x) a certificate dated the Closing Date, signed by the Chairman, Chief Executive Officer and President and by the Executive Vice President, Finance Secretary of the Company, confirming the matters set forth in Sections 6(w)(i)-(iii6(x), 9(a) and 9(b9(c) and stating that each of the Company has complied in all material respects with all the agreements and satisfied in all material respects all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date and (y) a certificate of the Chief Compliance Officer of the Company or another officer of the Company satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation confirming the following:
(i) neither the Company nor any of its Subsidiaries has violated any provisions of ERISA or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect; and
(ii) each of the Company and its Subsidiaries (i) has such Authorizations of, and has made all filings with and notices to, all federal, state and foreign governments, governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws and (ii) is a member in good standing of each federal, state or foreign exchange, board of trade, clearing house or association and self-regulatory or similar organization, in each case, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and other than as described in the Offering Memorandum, such Authorizations contain no restrictions, including, without limitation, net capital requirements, that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse EffectDate.
(e) You The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Fulbright Gardere Wynnx Xxxxxx & Xxxxxxxx L.L.P.Xiggx, X.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporatedincorporated or formed, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation Delaware and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each of its Subsidiaries has been duly organized or incorporated, as the case may be, and is validly existing as a limited partnership, a limited liability company or a corporation, as the case may be, in good standing under the laws of the jurisdiction in which it is organized or incorporated, as the case may be, and has the power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect, and each of its Subsidiaries is duly qualified and is in good standing and authorized to do business in each foreign jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and, to the knowledge of such counsel, not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock, membership interests or partnership interests, as the case may be, of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned, directly or indirectly, by the Company, to the knowledge of such counsel, free and clear of any Lien;
(v) the Series A Restricted Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Company had the corporate right, power and authority to execute and deliver the Xxxxxxxxx Acquisition Agreement and to perform its obligations thereunder; the Xxxxxxxxx Acquisition Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company and in accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viiiiv) this Agreement has been duly authorized, executed and delivered by the Company;
(ixv) The the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and generally, (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicabilityapplicability and (z) the enforceability of the indemnification provisions thereof may be limited by federal and state securities laws;
(xvi) the Series B Exchange Notes have been duly authorized;
(xivii) the statements under the captions "Business--Pending Acquisitions," "--Operations--NYSE Rules Governing Our Specialist Activities," "Business--Regulatory Matters," "Employment Agreements and Noncompetition Agreements," "Incentive Awards to Our EmployeesRisk Factors," "Description of the Secured Notes, " "Description of the New Senior Subordinated Notes," "Description of Other Certain Indebtedness," "Certain United States Federal Income Tax ConsequencesConsiderations for Non-U.S. Holders," and "Description of Security for the Secured Notes," "Plan of Distribution," (other than statements "Notice to Investors in the Secured Notes" and "Plan of DistributionNotice to Investors in the New Senior Notes," furnished to the Company by the Initial Purchasers, as to which no opinion is rendered) in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings;
Appears in 1 contract
Samples: Purchase Agreement (R&b Falcon Corp)
