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 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular. (d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c). (e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York. (f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada. (g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the
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 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 Company, any Guarantor 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, 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, and (ii) there shall not have been any 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 the Initial Purchasers' your reasonable judgment, is material and adverse and, in the Initial Purchasers' your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company (i) stating that the representations and warranties of the Company and the Guarantors, 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 9(aclause 9(b) and 9(c)) hereof and (iii) stating that the Company and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Gordon & XxxxxxSilver Ltd., counsel coxxxxx for the Company and the GuarantorsCompany, in substantially the form attached hereto as of Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New YorkC hereto.
(f) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to you and counsel for the Initial Purchasers and counsel to the Initial PurchasersPurchaser), dated the Closing Date, of Xxxxxxx XxxxxxRobinson, Nevada counsel to the Company and each of the GuarantorsWaters & O'Dorisxx, Xxxxrado counsex xxx xxx Company, substantially to the effect set forth in form of Exhibit C D hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers 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 Initial Purchaser.
(i) You shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers Purchaser from Deloitte & Touche LLP, independent public accountants, containing the information and counsel statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)Purchaser with respect to the financial statements and certain financial information contained in the Offering 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 which 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, dated 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 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Operative Documents and (ii) executed copies of each UCC-1 financing statement signed by the Company and each Guarantor, as applicable, naming the Trustee as secured party and 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 thethe Trustee in the Collateral, and to accord the Trustee the priorities over other creditors of the Company and the Guarantors as contemplated by the Offering Circular and the Operative Documents.
(o) The Trustee shall have received irrevocable commitments for title insurance from Nevada Title Company, in a form and substance reasonably satisfactory to the Initial Purchaser, subject only to Liens permitted under the Indenture.
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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable judgmentjudgment of First Chicago, is material and adverse and, in the Initial Purchasers' reasonable judgmentjudgment of First Chicago, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificates dated the Closing Date, signed by the President or Chairman and Treasurer or Chief Executive Financial Officer and the Treasurer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(y), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & XxxxxxXxxxxx Xxxxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) Each of the United States 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 State of New Yorkcorporate power and authority to carry on its business and to own, lease and operate its properties as described in the Offering Memorandum.
(fii) 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 the states set forth in such opinion or an exhibit thereto.
(iii) All of the outstanding shares of capital stock of each of the Guarantors has been duly authorized and validly issued and are fully paid and non-assessable, and each Guarantor's stock records, stock certificates and minute books indicate that such Guarantor is owned by the Company in the percentage set forth on Schedule A, and to such counsel's knowledge are free and clear of any Lien, except as described in the Offering Memorandum.
(iv) The Initial Purchasers shall Series A Notes have received on been duly authorized and, when executed and authenticated in accordance with the Closing Date an opinion (in form provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel 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) equitable principles of general applicability (regardless of whether enforceability is considered in a proceeding at law or in equity).
(v) The Subsidiary Guarantees have been duly authorized by each Guarantor and will be duly authorized with 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 PurchasersPurchasers 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 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 (regardless of whether enforceability is considered in a proceeding at law or in equity).
(vi) The Indenture has been duly authorized, dated executed and delivered by the Closing DateCompany 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) equitable principles of Xxxxxxx Xxxxxxgeneral applicability regardless of whether enforceability is considered in a proceeding at law or in equity).
(vii) This Agreement has been duly authorized, Nevada counsel to executed and delivered by the Company and the Guarantors.
(viii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws Guarantors and is a valid and binding agreement of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to 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 thegeneral applicability (regardless of whether enforceability is considered in a proceeding at law or in equity).
(ix) The Series B Notes have been duly authorized.
(x) The statements under the captions "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources," "Management and Directors," "Description of Notes," "Description of Other Indebtedness" and "Plan of Distribution" in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters of documents referred to therein, fairly present in all material respects such legal matters or documents.
Appears in 1 contract
Samples: Purchase Agreement (Iae Inc)
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 on in all material 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 date hereof 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, 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 Issuer or any Guarantor of its Subsidiaries or any of its or their respective 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, and (ii) there shall not have occurred any change, nor shall notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuer or any Guarantor of 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 Circular other than as set forth disclosed in the Disclosure Package and the Final Offering 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 involving a prospective change in the properties, condition (financial conditionor otherwise), or the earnings, business, management or operations of the Company and Issuer or any of its subsidiariesSubsidiaries, taken as a whole, and (ii) there shall not have been any change or any development 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 Subsidiaries and (iii) neither the Company Issuer 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 the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, is material and adverse and, in the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, 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 Circular.
(d) The Initial Purchasers You shall have received on the Closing Date 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 Chief Chairman, the President or the Executive Officer Vice President and the Treasurer Chief Financial Officer of the Company Issuer 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 9(aclauses 9(b) and 9(c)) hereof;
(iii) stating that the Issuer and each of the Guarantors has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(iv) stating that they have carefully examined the Disclosure Package and the Final Offering Circular and, in their opinion, since the date of the Disclosure Package and the Final Offering Circular no event has occurred which should, under applicable securities laws, have been set forth in a supplement or amendment to the Disclosure Package and the Final Offering Circular.
(e) The Initial Purchasers 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 (in form subject to customary qualifications, limitations and substance exceptions and reasonably satisfactory to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, as of Dechert Price such date of MxXxxxxxx Will & XxxxxxExxxx LLP, counsel for the Company and the GuarantorsIssuer, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as substantially to the federal laws of the United States and the laws of the State of New Yorkeffect set forth in Exhibit A attached hereto.
(fg) The Initial Purchasers You shall have received on the Closing Date an opinion (in form subject to customary qualifications, limitations and substance exceptions and reasonably satisfactory to the Initial Purchasers 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 PurchasersPurchaser and counsel for the Initial Purchaser), dated as of such date of Rxxxxx X. Xxxx , North Carolina counsel for the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the GuarantorsIssuer, substantially to the effect set forth in Exhibit C attached hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(gi) The Initial Purchasers 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 Purchasers 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 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, 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 Disclosure Package or the Final Offering Circular, or any amendment or supplement thereto, or which would be expected to have a Material Adverse Effect.
(r) The Issuer shall have furnished to the Initial Purchaser and counsel to the Initial Purchasers)Purchaser such other certificates, dated opinions or other documents as they may have reasonably requested and as are customary in the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of thetransactions 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 CircularMemorandum.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(hh), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Xxxxxxxxxx Xxxxxxx & XxxxxxXxxxx LLP, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) each of the United States Company and its subsidiaries has been duly incorporated or formed, is validly existing as a corporation, limited liability company or limited partnership in good standing under the laws of its jurisdiction of incorporation or formation and has the State of New York.corporate, limited liability company or limited partnership power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(fii) The Initial Purchasers shall 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, except where the failure to be so qualified would not have received on a Material Adverse Effect;
(iii) all the Closing Date an opinion 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; 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 form accordance with the provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel 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 Guarantees have been duly authorized and validly executed and delivered by the Guarantors 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)Purchasers in accordance with the terms of this Agreement, dated the Closing DateGuarantees 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 Xxxxxxx Xxxxxxacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Indenture has been duly authorized, Nevada counsel to 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;
(viii) this Agreement has been duly authorized, executed and delivered by the Company 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 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;
(x) the Series B Senior Notes have been duly authorized 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, substantially to enforceable in accordance with their terms except as (x) the effect set forth in Exhibit C hereto. In providing such opinionenforceability thereof may be limited by bankruptcy, such counsel shall opine as to insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the laws availability of equitable remedies may be limited by equitable principles of general applicability;
(xiii) the statements under the captions "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Business," "Description of the State Company's Capital Stock," "Description of Nevada.
(g) The Initial Purchasers shall have received on Notes," "Description of Certain Indebtedness," "Notice to Investors" and "Plan of Distribution" in the Closing Date an opinion (Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in form all material respects such legal matters, documents and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theproceedings;
Appears in 1 contract
Samples: Purchase Agreement (Mail Well 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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and Closing Date, or on the each Option Closing Date Date, if any, with the same force and effect as if made on and as of the date hereof and Closing Date or on the each Option Closing Date, respectivelyif 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable UBS’ judgment, is material and adverse and, in the Initial Purchasers' reasonable UBS’ judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Gxxxxxx X. Xxxxxx and C. Exxx Xxxxxx, in their capacities as President and Chief Executive Officer Officer, and the Treasurer Chief Financial Officer, respectively, of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers (A) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Dechert Price Gxxx Cxxx Xxxx & XxxxxxFreidenrich 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 Document and to own, lease and operate its properties;
(ii) the Notes and the Indenture have been duly authorized, executed and delivered by the Company; Purchase Agreement LA\1074155.8
(iii) the Notes are convertible into shares of 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 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-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;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the GuarantorsCompany 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;
(vi) the statements under the captions “Description of Notes,” “Description of Capital Stock” and “Certain United States Federal Income Tax Considerations” in the form attached Offering Memorandum, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present in all material respects such legal matters 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 Exhibit B. In providing such opinionset forth on Schedule F hereto or in the Offering Memorandum, such counsel shall opine 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 federal laws requirements of the United States TIA, and the laws rules and regulations of the State Commission applicable to an indenture which is qualified thereunder. It is not necessary in connection with the offer, sale and delivery of New York.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory Notes to the Initial Purchasers and counsel in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Initial Purchasers), dated Indenture under the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to TIA; and
(xiii) no registration under the Company and each Act of the Guarantors, substantially to Securities is required for the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws sale of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory 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 counsel to compliance with, the Initial Purchasers)’ representations and agreements contained in Section 7 of this Agreement, dated 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 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 Holmea material fact or omits to state a material fact necessary in order to make the statements therein, Xxxxxxx in the light of the circumstances under which they were made, not misleading. Purchase Agreement LA\1074155.8 The opinion of Gxxx Cxxx Xxxx & Xxxx LLP, Colorado counsel Freidenrich LLP described in Section 9(e)(A) above shall be rendered to you at the request of the Company and each 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 thethe 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 hereunder are subject to the satisfaction of each accuracy in all material respects of the representations and warranties of the Issuers herein contained, to the performance in all material respects by the Issuers of their obligations hereunder and to the following further conditions:
(a) All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on the date hereof and on At the Closing Date with Time the same force and effect as if made on and Initial Purchasers shall have received:
(1) The favorable opinion, dated as of the date hereof Closing Time, of Kramer, Levin, Naftalis & Franxxx, xxunsel for the Issuers, in form and on substance satisfactory to counsel for the Initial Purchasers, to the effect set forth in Exhibit E hereto.
(2) The favorable opinion, dated as of the Closing DateTime, respectivelyof Anthxxx X. Xxxxxx, Xxq., General Counsel of the Company, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect set forth in Exhibit F hereto.
(3) The favorable opinion, dated as of the Closing Time, of Lathxx & Xatkxxx, xxunsel for the Initial Purchasers, in form and substance satisfactory to you.
(b) On or after At the date hereof, (i) Closing Time there shall not have occurred any downgradingbeen, suspension since the date hereof 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 notice have been given of any potential or intended change, in the outlook for any rating 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 since the respective dates as of which information is given in the Offering Circular other than as set forth in the Offering Circular (exclusive of Memorandum, any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any material adverse change in the financial condition, financial or otherwise, or in the earnings, business, management business affairs or operations business prospects of the Company and its subsidiariessubsidiaries considered as one enterprise, taken as a wholewhether or not arising in the ordinary course of business, and (ii) there shall not have been any 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on a certificate of the President or a Vice President and the chief financial or chief accounting officer of each of the Issuers, dated as of the Closing Date a certificate dated Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 of this Agreement are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing DateTime, signed by and (iii) the Chief Executive Officer Issuers have complied in all material respects with all agreements in this Agreement and the Treasurer of the Company and the Guarantors, confirming the matters set forth satisfied all conditions in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received this Agreement on their part to be performed or satisfied at or prior to the Closing Date an opinion (Time. As used in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasersthis Section 6(b), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for term "Offering Memorandum" means the Company and the Guarantors, Offering Memorandum in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as first used to the federal laws confirm sales of the United States and the laws of the State of New YorkSecurities.
(f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the
Appears in 1 contract
Samples: Purchase Agreement (Kaiser Texas Sierra Micromills LLC)
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 on in all material respects, except for those representations and warranties of the date hereof 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer (or if there is no Chief Financial Officer, the Treasurer) of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(ab), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Olshan Grundman Xxxxx & XxxxxxXxxxxxxeig LLP, counsel for xxxxxxx xxr the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) each of the United States 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 State of New York.corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(fii) The Initial Purchasers shall 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 received on a Material Adverse Effect;
(iii) all the Closing Date an opinion 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 direct and indirect 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, except as set forth in form Schedule C-3 hereto;
(v) the Series A Senior Notes have been duly authorized and, when executed and substance satisfactory authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers and counsel 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, if applicable, and the availability of equitable or other remedies or other may be limited by equitable principles of general applicability;
(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)Purchasers in accordance with the terms of this Agreement, dated the Closing DateSubsidiary 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 the effect of Xxxxxxx Xxxxxxapplicable bankruptcy, Nevada counsel to 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;
(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 Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to 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 theapplicable 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;
(viii) this Agreement has been duly authorized, executed and delivered by the Company 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 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, if applicable, and the availability of equitable or other remedies may be limited by equitable principles of general applicability;
(xi) the Series B Senior Notes have been duly authorized;
(xii) 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 "Risk Factors-Significant Outstanding Indebtedness of The Company," "Risk 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-Legal Proceedings-General Litigation," "Description of Notes," "Description of Principal Indebtedness", "Description of Receivables Facility" and "Indemnification and Intercreditor Agreement" 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 and pay for the Series A Notes under this Agreement are C Notes, as provided herein, shall be subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Guarantors Issuers contained in this Agreement shall be true and correct on the date hereof and on the Closing Date (after giving effect to the Transactions (as such term is defined in the Offering Memorandum)) with the same force and effect as if made on and as of the date hereof and on the Closing Date, respectively. Each of the Issuers shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(b) On or after The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the second business day following the date hereofof this Agreement or at such later date and time as to which the Initial Purchasers may agree, (iand no stop order suspending the qualification or exemption from qualification of the Series C Notes in any jurisdiction referred to in Section 4(e) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any potential or intended downgradinggovernmental agency which would, 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 as of the possible change inClosing Date, any rating prevent the issuance of the Company Series C Notes or any Guarantor the Guarantees or any securities the consummation of the Company or any Guarantor Transactions (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 in the ActOffering Memorandum); no action, (ii) there suit or proceeding shall not have occurred any change, nor shall notice have been given commenced and be pending against or affecting or, to the best knowledge of any potential or intended changethe Issuers, in the outlook for any rating of threatened against, the Company or any Guarantor by of its Subsidiaries before any such rating organization court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to adversely affect the issuance of the Series C Notes or the Guarantees or the consummation of the Transactions; and (iii) no such rating organization stop order shall have given notice that it has assigned (been issued preventing the use of the Offering Memorandum, or is considering assigning) any amendment or supplement thereto, or which could reasonably be expected to have a lower rating to the Notes than that on which the Notes were marketedMaterial Adverse Effect.
(cd) Since the respective dates as of which information is given in the Offering Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any change material adverse change, or any development that is reasonably likely to result in a material adverse change, in the financial conditioncapital stock or the long-term debt, or material increase in the earningsshort-term debt, businessof the Company or any of its Subsidiaries from that set forth in the Offering Memorandum, management (ii) no dividend or operations distribution of any kind shall have been declared, paid or made by the Company or any of its Subsidiaries on any class of its capital stock and (iii) none of the Company or any of its Subsidiaries shall have incurred any liabilities or obligations, direct or contingent, that are or, after giving effect to the Transactions (as such term is defined in the Offering Memorandum), will be material, individually or in the aggregate, to the Company and its subsidiariesSubsidiaries, taken as a whole, and (ii) that are required to be disclosed on a balance sheet or notes thereto in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet or notes thereto included in the Offering Memorandum. Since the date hereof and since the dates as of which information is given in the Offering Memorandum, there shall not have been occurred any material adverse change in the capital stock business, prospects, financial condition or in the long-term debt results 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer operation of the Company and the Guarantorsits Subsidiaries, confirming the matters set forth in Sections 9(a) and 9(c)taken as a whole.
(e) The Initial Purchasers shall have received on certificates, dated the Closing Date an opinion (Date, signed on behalf of the Company and the Holmxx Guarantors, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of Dechert Price & Xxxxxxthis Section 8 and that, counsel for as of the Company Closing Date, the obligations of the Company, the Holmxx Xxxrantors and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as Rival Guarantors to the federal laws of the United States and the laws of the State of New Yorkbe performed hereunder on or prior thereto have been duly performed.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel to for the Initial Purchasers), dated the Closing Date, of Xxxxxxx XxxxxxPosternak, Nevada Blanxxxxxx & Xund, X.L.P., counsel to for the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing covering such opinion, such counsel matters as shall opine be reasonably requested by them (or "as to the laws of the State of Nevadaare customarily covered").
(g) The At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received on from PricewaterhouseCoopers LLP and KPMG LLP, independent public accountants, dated as of the date of this Agreement and as of the Closing Date an opinion (Date, customary comfort letters addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers with respect to the consolidated financial statements and certain financial information of Holmxx xxx its subsidiaries, and of Rival and its subsidiaries, contained in the Offering Memorandum.
(h) The Initial Purchasers)Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, of HolmeLathxx & Xatkxxx, Xxxxxxx xxunsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(i) Lathxx & Xxxx LLPXatkxxx xxxll have been furnished with such documents, Colorado 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Issuers shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request.
(k) The Issuers and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(l) The Issuers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(m) The Credit Facility shall be consummated prior to, or simultaneously with, the Closing of the Offering on substantially the terms described in the Offering Memorandum and the Initial Purchasers shall have received counterparts, conformed as executed, of the Credit Facility and such other documentation as they deem necessary to evidence the consummation thereof.
(n) Any applicable waiting period under the Hart Xxxtx Xxxxxx xxx shall have been expired or terminated.
(o) All of the opinions to be delivered by the Issuers pursuant to the Credit Facility shall be addressed and delivered to the Initial Purchasers, or appropriate reliance letters satisfactory to the Initial Purchasers' counsel shall have been delivered to the Initial Purchasers.
(p) Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 463(g) under the Securities Act, that (i) it is downgrading its rating assigned to any class of securities of the Company or (ii) it is reviewing its ratings assigned to any class of securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(q) The Notes shall have been approved for trading on PORTAL. All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company and each the Guarantors will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchasers. The Company and the Guarantors shall furnish the Initial Purchasers with such conformed copies of thesuch opinions, certificates, letters and other documents as they shall reasonably request.
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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiariesthe Guarantors, taken as a whole, and (ii) there shall not have been any change or any development 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(y), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date. The certificate shall specifically permit Ice, Xxxxxx, Xxxxxxx & Xxxx to rely upon it.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Ice, Xxxxxx, Xxxxxxx & XxxxxxXxxx, counsel for the Company and the Guarantors, to the effect that:
(I) 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 and 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), Ice, Xxxxxx, Xxxxxxx & Xxxx xxx state that their opinion and belief are based upon their participation in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws preparation of the United States Offering Memorandum and the laws any amendments or supplements thereto and review and discussion of the State of New Yorkcontents thereof, but are without independent check or verification except as specified.
(f) The Initial Purchasers You also shall have received on the Closing Date an opinion (in form and substance satisfactory to you and counsel for the Initial Purchasers and counsel to the Initial PurchasersPurchaser), dated the Closing Date, of Xxxxxxx XxxxxxSiegel, Nevada Moses, Schoenstadt & Xxxxxxx, regulatory counsel to for the Company and each of the Guarantors, substantially with respect to certain regulatory issues in the effect set forth in form attached hereto as Exhibit C hereto. In providing such opinion, such counsel B. The opinion shall opine as be rendered to you at the laws request of the State of NevadaCompany and the Guarantors and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an opinion 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 the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from Xxxx, Sapper & Xxxxxx and counsel Xxxxx & Xxxxx LLP, both independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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 HolmeIce, Xxxxxx, Xxxxxxx & Xxxx LLPrelating 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, Colorado counsel 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 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 each the Guarantors.
(n) Neither the Company nor the Guarantors shall have failed at or prior to the Closing Date to perform or comply with any of thethe 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.
(o) The Reorganization shall have occurred as described in the Offering Memorandum.
(p) The New Credit Facility (as defined in the Offering Memorandum) shall have been entered into on substantially the same terms described in the Offering Memorandum.
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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor 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, and (ii) there shall not have been any change or any development 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the,
Appears in 1 contract
Samples: Purchase Agreement (Newcor 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 and the Guarantors Panolam Parties contained in this Agreement shall be true and correct 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.
(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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations opera- tions of the Company Company, the Subsidiary Guarantors and its their respective subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development 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 their respective subsidiaries and (iii) neither none of the Company nor Company, the Guarantors or any of its 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 CircularMemorandum.
(d4) The Initial Purchasers shall have received on the Closing Date (i) a certificate dated the Closing Date, signed by the President (or Chief Executive Officer Officer) and the Treasurer Chief Financial Officer (or principal financial or accounting officer) of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that the Company and each of the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date; and (ii) a certificate dated the Closing Date, signed by the President (or Chief Executive Officer) and Chief Financial Officer (or principal financial or accounting officer) of the Company and each of the Guarantors, stating that the industry, statistical and market- related data included in the Offering Memorandum has been reviewed by such persons and, to the best knowledge of such persons, subject to the risks and limitations described in the Preliminary Offering Memorandum and the Offering Memorandum, is true and accurate in all material respects and is based on or derived from sources which the Company and the Guarantors believe to be reliable and accurate, which certificate shall be in form and substance satisfactory to counsel for the Initial Purchasers.
(e5) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Xxxxxxx, Xxxxxxx & XxxxxxXxxxxxxx, LLP, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(1) each of the United States Company, the Guarantors and their respective subsidiaries, other than the Canadian Subsidiary, is validly existing as a corporation in good standing under the laws of the State of New YorkDelaware 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 as described in the Offering Memorandum;
(2) 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 Connecticut; (b) Panolam in Connecticut; (c) PII Second, Inc. in Connecticut; (d) Panolam Industries, Inc. in Connecticut, Oregon and Georgia; and (e) Pioneer in California, Georgia, Indiana, Maine and Tennessee.
(f3) The Initial Purchasers shall all the outstanding shares of capital stock of Holdings, the Company, the Guarantors and their respective subsidiaries, other than the Canadian Subsidiary, have received been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights, other than as described in the Offering Memorandum;
(4) the entities listed on Schedule D hereto are the Closing Date an opinion only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the Company's subsidiaries are owned directly or indirectly by the 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.
(5) the issuance and sale of the Series A Notes by the Company have been duly authorized and, when executed and authenticated in form accordance with the provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel 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 the enforceability thereof may be limited by (x) bankruptcy, fraudulent transfer, insolvency, 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);
(6) the issuance and sale of the Guarantees have been duly authorized by the Guarantors 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 PurchasersPurchasers in accordance with the terms of this Agreement, the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms except as the enforceability thereof may be limited by (x) bankruptcy, 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);
(7) the Indenture has been duly authorized, dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to 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 Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as the enforceability thereof may be limited by (x) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors' rights generally and (y) equitable principles of thegeneral applicability (regardless of whether enforceability is considered at equity or in law);
(8) this Agreement has been duly authorized, executed and delivered by the Company and the Guarantors;
(9) 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 Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except (A) as the enforceability thereof may be limited by (x) bankruptcy, 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 to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations, and (C) such counsel need express no opinion with respect to Section 5 of the Registration Rights Agreement;
(10) the Series B Senior Notes have been duly authorized by the Company;
(11) the statements under the captions "The Transactions," "Management-Employment Agreements," "-1996 Option Plan," "Certain Transactions," "Description of Certain Indebtedness," "Description of Notes" and "Plan of Distribution" (not including any portion of this section provided by the Initial Purchasers pursuant to Section 6(a)) in the Offering Memorandum, insofar as such statements constitute a summary of the provisions of such documents described therein, fairly 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;
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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, 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 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Secretary of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(x), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Baker, Xxxxxxxx, Xxxxxxx & XxxxxxXxxxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) each of the United States 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 State of New York.corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(fii) 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, or application has been made and is pending 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 and each of the Guarantors 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 the Company and Harperprints, Inc. are owned by Master Graphics, Inc., free and clear of any Lien 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 Initial Purchasers shall Company and Harperprints, Inc. are the only subsidiaries of Master Graphics, Inc.;
(v) each of the Company and the Guarantors have received on the Closing Date an opinion 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 form accordance with the provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel 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;
(vii) the guarantees of each Guarantor have 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 Purchasers)Purchasers in accordance with the terms of this Agreement, dated the Closing DateGuarantees 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 Xxxxxxx Xxxxxxacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) the Indenture has been duly authorized, Nevada counsel to 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) this Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.;
(gx) The Initial Purchasers shall have received on Registration Rights Agreement has been duly authorized, executed and delivered by the Closing Date an opinion (in form Company and substance satisfactory to the Initial Purchasers Guarantors and counsel to the Initial Purchasers), dated the Closing Date, is a valid and binding agreement of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to 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 theacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xi) the Exchange Notes have been duly authorized;
(xii) the statements under the captions "Risk Factors," "Description of Notes, " "Certain Federal Income Tax Considerations," "ERISA Considerations" and "Plan of Distribution" in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, fairly present in all material respects such legal matters;
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 to purchase Additional Notes under this Agreement 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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and on the Closing Date or the Option Closing Date, as the case may be, with the same force and effect as if made on and as of the date hereof and on Closing Date or the Option 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) Notes 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 notice have been given of any potential or intended change, in the outlook for any rating 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 marketedmarketed (other than, in each such case, a downgrading of any rating of the Company or the Notes that has occurred solely as a result of the increase in the aggregate principal amount of the Notes being sold to the Initial Purchasers from the amount reflected in the Preliminary Offering Memorandum).
(c) Since the respective dates as of which information is given in the Offering Circular Memorandum, other than as set forth in the Offering Circular Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any material adverse change or any development involving a prospective material adverse change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development 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 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in the judgment of 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 CircularMemorandum.
(d) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate dated the Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a), 9(b) and 9(c)) hereof.
(e) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date or the Option Closing Date, as the case may be, of Dechert Price Xxxxx & XxxxxxXxxxx, L.L.P., counsel for the Company, to the effect that:
(i) each of the Company and its Material Subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the Guarantorslaws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business and to own, lease and operate its properties as described in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to Offering Memorandum;
(ii) all the federal laws outstanding shares of capital stock of the United States Company have been duly authorized by all necessary corporate action on behalf of the Company and are validly issued, fully paid and nonassessable, and to such counsel's knowledge, none of the laws outstanding shares of capital stock of the Company were issued in violation of or subject to any preemptive rights or other similar rights to subscribe for or purchase the same arising under the Certificate of Incorporation or Bylaws of the Company or the General Corporation Law of the State of New York.
(f) The Initial Purchasers shall Delaware; the shares of Common Stock initially issuable upon conversion of the Notes have received been duly authorized by all necessary corporate action on behalf of the Closing Date an opinion (in form Company, have been reserved for issuance upon conversion and, when issued and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to delivered by the Company and each upon conversion of the GuarantorsNotes, substantially will be validly issued, fully paid and nonassessable; and to such counsel's knowledge, there are no preemptive rights or other similar rights to subscribe for or purchase the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to Securities arising under the laws Certificate of Incorporation or Bylaws of the Company or the General Corporation Law of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theDelaware;
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) a. All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on the date hereof and 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 on the Closing Date, respectively.
(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 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 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 Circular other than as set forth in the Offering 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, whole and (ii) there shall not have been any 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
(d) d. The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a), 9(b) and 9(c)) and stating that 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.
(e) e. The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Stearns Weaver Miller Weissler Alhadxxx & XxxxxxXixxxxxxn, counsel X.X., xxxxxxx xxxxxxx for xxx Xxxxany, to the effect that:
(i) each of the Company and the Guarantorsits subsidiaries has been duly incorporated, is validly existing as a corporation in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and good standing under the laws of its jurisdiction of incorporation and has the State of New York.corporate power and authority to carry on its business as described in the Offering Circular and to own, lease and operate its properties;
(fii) The Initial Purchasers shall the Series A Senior Notes have received on been duly authorized and, when executed and authenticated in accordance with the Closing Date an opinion (in form provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel in accordance with the terms of this Agreement, will be entitled to the Initial Purchasers)benefits of the Indenture and will be valid and binding obligations of the Company, dated enforceable in accordance with their terms except as (A) the Closing Dateenforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (B) rights of Xxxxxxx Xxxxxxacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(iii) the Indenture has been duly authorized, Nevada counsel to executed and delivered by the Company and each is a valid and binding agreement of the GuarantorsCompany, substantially to enforceable against the effect set forth Company in Exhibit C hereto. In providing such opinionaccordance with its terms except as (A) the enforceability thereof may be limited by bankruptcy, such counsel shall opine as to insolvency or similar laws affecting creditors' rights generally and (B) rights of acceleration and the laws availability of the State equitable remedies may be limited by equitable principles of Nevada.general applicability;
(giv) The Initial Purchasers shall have received on this Agreement has been duly authorized, executed and delivered by 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theCompany;
Appears in 1 contract
Samples: Purchase Agreement (Mastec 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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and Closing Date, or on the each Option Closing Date Date, if any, with the same force and effect as if made on and as of the date hereof and Closing Date or on the each Option Closing Date, respectivelyif 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Xxxx X. Xxxxxx and Xxxxx X. Xxxxx, in their capacities as President and Chief Executive Officer Officer, and the Treasurer Executive Vice President and Chief Financial Officer, respectively, of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Dechert Price Gray Xxxx Xxxx & XxxxxxFreidenrich LLP, counsel for the Company and the GuarantorsCompany, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws or of the United States and the laws of the State of New York.
(f) 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 foreign counsel to the Company and with respect to certain foreign subsidiaries, to the effect that:
(i) each of the GuarantorsCompany and its subsidiaries has been duly incorporated, substantially 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 on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole;
(iii) 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, to such counsel's knowledge, are owned of record by the Company, free and clear of any Lien;
(iv) 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 Agreement, will be entitled to the effect 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 availability of equitable remedies may be limited by equitable principles of general applicability;
(v) 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 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 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 Exhibit C hereto. In providing such opinionthe Offering Memorandum; and the stockholders of the Company have no pre-emptive or, such counsel shall opine as to the laws knowledge of such counsel, similar rights with respect to the Notes or the Common Stock issuable upon the conversion of the State of Nevada.Notes;
(gvii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) The Initial Purchasers shall have received on the Closing Date an opinion (in form Registration Rights Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to delivered by the Company and each is a valid and binding agreement of thethe 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;
(ix) the statements under the captions "Business Technology Licensing", "Business Patents and Proprietary Technologies", "Management Limitations on Liability and Indemnification Matters," "Management Stock Option Plans", "Management Employee Stock Ownership Plan", "Management 1998 Employee Stock Purchase Plan", "Management Section 401(k) Plan," "Description of Notes," "Description of Capital Stock" and "Summary of Certain 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;
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 on the date hereof and 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Xxxxx, Xxxxx & XxxxxxXxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) each of the United States 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 State of New York.corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(fii) The Initial Purchasers shall 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 that is listed on a schedule to such opinion;
(iii) all the outstanding shares of capital stock of the Company have received on been duly authorized and validly issued and are fully paid, nonassessable and not subject to any preemptive or similar rights;
(iv) all of the Closing Date an opinion 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 are owned by the Company, free and clear of any Lien, except as provided in the Credit Agreement;
(v) the Warrant Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in form accordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and substance satisfactory (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 counsel 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 Initial Purchasers)terms of the Warrants and the Warrant Agreement, dated will be validly issued, fully paid, nonassessable and not subject to any preemptive or similar rights;
(viii) the Closing DateIndenture has been duly authorized, of Xxxxxxx Xxxxxx, Nevada counsel to 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;
(x) the Guarantees have been duly authorized and, when the Initial 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 holders of the Guarantees endorsed thereon will be entitled to the benefits of the Indenture and the Guarantees will be valid and binding obligations of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws enforceable against each of the State Guarantors 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 Nevadaacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xi) each of the Company and the Guarantors has duly and validly authorized the issuance of the Initial Notes, the Guarantees and Warrants as Units.
(gxii) The Initial Purchasers shall have received on this Agreement has been duly authorized, executed and delivered by the Closing Date an opinion Company and the Guarantors;
(in form xiii) the Notes Registration Rights Agreement has been duly authorized, executed and substance satisfactory to delivered by the Initial Purchasers Company and counsel to the Initial Purchasers), dated the Closing Date, Guarantors and is a valid and binding agreement of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to 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 theacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xiv) 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;
(xv) the Exchange Notes have been duly authorized;
(xvi) the statements under the captions "The Sprint PCS Agreements," "Description of Our Indebtedness," "The Reorganization," "Regulation of the Wireless Industry," "Description of Units," "Description of Notes," "Description of Warrants," "Description of Capital Stock" and "Certain United States 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;
Appears in 1 contract
Samples: Purchase Agreement (Ipcs 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a material and adverse prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development 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 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(y), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Portxx & XxxxxxXedgxx, X.L.P., counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New Yorkeffect set forth in Exhibit B hereto.
(f) 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 Venezuelan counsel to the Company and each of substantially in the Guarantors, substantially to the effect set forth in Exhibit C form attached as Schedule D hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion 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 Initial Purchasers.
(h) The Initial Purchasers shall have received, at the time this Agreement is executed and at the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from KPMG Peat Marwick LLP, independent public accountants, containing the information and counsel statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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, dated 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 and the Guarantors.
(l) Neither the Company nor the 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 the Company or the Guarantors, as the case may be, at or prior to the Closing Date, .
(m) The Company shall have received any approvals or consents from the lenders under the Bank Credit Facility (as defined in the Offering Memorandum) necessary in order to consummate the issuance of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel Notes contemplated hereby.
(n) The Company shall have received the requisite consent from the holders of the Series A Notes (as defined in the Offering Memorandum) to issue the Second Supplemental Indenture (the "Series A Supplemental Indenture") to the Company Indenture, dated June 27, 1997, governing the Series A Notes, and each of theshall have entered into the Series A Supplemental Indenture with the trustee under such indenture.
Appears in 1 contract
Samples: Purchase Agreement (Grey Wolf Inc)
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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and 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 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 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 Guarantor 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, 22 management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the judgment of the Initial Purchasers' reasonable judgmentPurchaser, is so material and adverse and, in the Initial Purchasers' 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 CircularMemorandum.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections Section s 6(y), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion the opinions (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price each of (i) Skadden, Arps, Slate, Meagxxx & XxxxxxXlom XXX, special counsel for the Company and the GuarantorsCompany, in substantially the form attached hereto as Exhibit B. In providing such opinionAnnex A and (ii) Skadden, such Arps, Slate, Meagxxx & Xlom XXX, as special French counsel shall opine for the Company, in substantially the form attached hereto as to the federal laws of the United States and the laws of the State of New York.Annex B.
(f) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion opinion, dated the Closing Date, of Lathxx & Xatkxxx, xxunsel 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 or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers Purchaser from Arthxx Xxxexxxx, X.L.P., independent public accountants for the Company and counsel Coopers & Lybrxxx X.X.P., independent public accountants for Anchor, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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, dated 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 23 executed by the Company.
(k) 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 required to be performed or complied with by the Company, as the case may be, at or prior to the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of 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 on the date hereof and 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 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 Guarantor 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 Circular Memorandum other than as set forth in or contemplated by the Offering Circular 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 conditionor 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 the Initial Purchasers' your reasonable judgment, is material and adverse and, in the Initial Purchasers' your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers 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 Treasurer Executive Vice President, Finance of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(w)(i)-(iii), 9(a) and 9(c)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) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Fulbright & XxxxxxXxxxxxxx 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 Guarantorscorporate 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 the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and good standing under the laws of the State of New York.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;
(fii) The Initial Purchasers shall 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 received on 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 Closing Date an opinion 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 form accordance with the provisions of the Indenture and substance satisfactory 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 counsel 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), dated as to which no opinion is rendered) in the Closing DateOffering Memorandum, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each insofar as such statements constitute a summary of the Guarantorslegal matters, substantially documents or proceedings referred to the effect set forth therein, fairly present in Exhibit C hereto. In providing all material respects such opinionlegal matters, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form documents and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theproceedings;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the --------------------------------------------- Initial Purchasers to purchase and pay for the Series A Notes under this Agreement are (and the Series A Subsidiary Guarantees), as provided herein, shall be subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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. The Company and the Guarantors shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the second business day following the date hereof of this Agreement or at such later date and on time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Series A Notes (and the Series A Subsidiary Guarantees) in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) 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, respectivelyprevent the issuance of the Series A Notes or the Series A Subsidiary Guarantees; no action, suit or proceeding shall have been commenced and be pending against or affecting or threatened against, the Company or any of its subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to prevent the issuance of the Series A Notes or the Series A Subsidiary Guarantees; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(bd) Since the dates as of which information is given in the Offering Memorandum, (i) there shall not have been any material adverse change, or any development that is reasonably likely to result in a material adverse change, in the capital stock or the long-term debt, or material increase in the short-term debt, of the Company or any of its subsidiaries from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of its subsidiaries on any class of its capital stock (other than Tax Distributions) and (iii) none of the Company or any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent, that are or, after giving effect to the sale and issuance of the Series A Notes and Series A Subsidiary Guarantees, the initial borrowings under the Credit Agreement, and the application of the proceeds therefrom as described in the Offering Memorandum, will be material, individually or in the aggregate, to the Company and its subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet or notes thereto in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet or notes thereto included in the Offering Memorandum. Since the date hereof and since the dates as of which information is given in the Offering Memorandum, there shall not have occurred any material adverse change in the business, prospects, financial condition or results of operation of the Company and its subsidiaries, taken as a whole.
(e) 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 Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(df) The Initial Purchasers shall have received on the Closing Date a certificate certificates, dated the Closing Date, signed by the Chief Executive Officer and the Treasurer on behalf of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c), (d) and (e) of Dechert Price & Xxxxxxthis Section 8 and that, counsel for as of the Closing Date, the obligations of the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as Guarantors to the federal laws of the United States and the laws of the State of New York.
(f) The Initial Purchasers shall be performed hereunder on or prior thereto 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevadabeen duly performed.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, of Xxxxxxx & Xxxxxx, counsel for the Company and the Guarantors, to the effect set forth in Exhibit C-1 hereto. -----------
(h) At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received from Xxxxxx Xxxxxxxx LLP, independent public accountants dated as of the date of this Agreement and as of the Closing Date, customary comfort letters addressed to the Initial Purchasers)Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers with respect to the financial statements and certain financial information of the Company and its subsidiaries contained in the Offering Memorandum.
(i) The Initial Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, of HolmeXxxxxx & Xxxxxxx, counsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(j) Xxxxxx & Xxxxxxx & Xxxx LLPshall have been furnished with such documents, Colorado counsel 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request.
(l) The Company, the Guarantors and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(m) The Company and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(n) The Company and the subsidiaries that are parties to the Credit Documents shall have entered into each of thethe Credit Documents and the Initial Purchasers shall have received counterparts, conformed as executed, of each of the Credit Documents.
(o) The Company shall have applied the proceeds from the sale and issuance of the Series A Notes and Series A Subsidiary Guarantees in accordance with the caption "Use of Proceeds" of the Offering Memorandum.
(p) The Notes shall have been approved for trading on PORTAL.
(q) The Initial Purchasers shall have received a reliance letter, dated the Closing Date, from Xxxxxxx & Xxxxxx, counsel for the Company and the Guarantors, authorizing each of the Initial Purchasers to rely on the opinion provided, pursuant to the provisions of the Credit Documents, by such counsel to BankBoston, N.A. and Summit Bank, as if such opinion were addressed to each of the Initial Purchasers; and such opinion shall be in form and substance satisfactory to the Initial Purchasers and shall be substantially in the form of Exhibit C-2 hereof. . ----------- All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company and the Guarantors will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchasers and the counsel for the Initial Purchasers. The Company and the Guarantors shall furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Interep National Radio Sales Inc)
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 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Senior Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a), 9(b) and 9(c).
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Faegre & XxxxxxXxxxxx LLP, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) each of the United States 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 (which opinion, as to Guarantors that are not incorporated in Minnesota, is based solely on good standing certificates received from the Secretaries of State of New York.such Guarantors' respective states of incorporation);
(fii) The 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 known to such counsel;
(iii) the Company, either directly or through one or more subsidiaries, is the record owner of all of the outstanding shares of capital stock of each of the Guarantors;
(iv) 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 shall have received on Purchaser in accordance with the Closing Date an opinion (in form and substance satisfactory 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;
(v) the 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 Purchasers and counsel Purchaser in accordance with the terms of this Agreement, the Subsidiary Guarantees endorsed thereon will be entitled to the Initial Purchasers)benefits of the Indenture and will be valid and binding obligations of the Guarantors, dated enforceable in accordance with their terms;
(vi) the Closing DateIndenture has been duly authorized, of Xxxxxxx Xxxxxx, Nevada counsel to 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;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and the Guarantors;
(viii) 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;
(ix) the Exchange Notes have been duly authorized and, when 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, 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; and
(x) when the Exchange Notes 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, substantially to the effect set forth enforceable in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevadaaccordance with their terms.
(gxi) the statements under the captions "The Initial Purchasers shall have received on Acquisition," "Management," "Certain Transactions," "Description of Senior Credit Facility," "Description of Senior Notes" and "Plan of Distribution" in the Closing Date an opinion (Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in form all material respects such legal matters, documents and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theproceedings;
Appears in 1 contract
Samples: Purchase Agreement (Wilsons the Leather Experts Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase and pay for the Series A Notes under this Agreement Initial Notes, as provided herein, are subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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. The Company shall have performed or complied with all agreements contained herein and required to be performed or complied with by it on or prior to the Closing Date.
(b) On or after The Offering Memorandum shall have been printed and copies distributed to the Initial Purchaser not later than 10:00 a.m., New York City time, on the day following the date hereofof this Agreement or at such later date and time as to which the Initial Purchaser may agree, (iand no stop order suspending the qualification or exemption from qualification of the Initial Notes thereof in any jurisdiction referred to in Section 4(e) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any potential or intended downgradinggovernmental agency that would, 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 as of the possible change inClosing Date, any rating prevent the issuance of the Initial Notes; no action, suit, investigation or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company, threatened against, the Company or any Guarantor of its subsidiaries before any court or arbitrator or any securities governmental body, agency or authority or administrative agency 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 Company Offering Memorandum, or any Guarantor (includingamendment or supplement thereto, 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 that could reasonably be expected to have occurred any change, nor shall notice have been given of any potential or intended change, in the outlook for any rating 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 marketedMaterial Adverse Effect.
(cd) Since the respective dates as of which information is given in the Offering Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any change in the financial conditionmaterial adverse change, or the earningsany development that is reasonably likely to result in a material adverse change, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change in the capital stock or in the long-term debt debt, or material increase in the short-term debt, of the Company or any of its subsidiaries from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of its subsidiaries on any class of its capital stock and (iii) neither the Company nor any of its subsidiaries shall have incurred any liability liabilities or obligationobligations, direct or contingent, the effect of whichthat are material, in any such case described in clause 9(c)(i), 9(c)(ii) individually or 9(c)(iii), in the Initial Purchasers' reasonable judgmentaggregate, is material to the Company and adverse andits subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet or notes, thereto in the Initial Purchasers' reasonable judgment, makes it impracticable to market the Series A Notes accordance with generally accepted accounting principles and are not disclosed on the terms and in the manner contemplated latest balance sheet or notes thereto included in the Offering Circular.
(d) The Initial Purchasers shall have received on Memorandum, nor entered into any transaction not in the Closing Date ordinary course of business. Since the date hereof and since the dates as of which information is given in the Offering Memorandum, there has not occurred any change, or any development that is reasonably likely to result in a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)Material Adverse Effect.
(e) The Initial Purchasers Purchaser shall have received certificates, dated the Closing Date, signed on behalf of the Company, in form and substance satisfactory to the Initial Purchaser, confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8 and clause (xliv) of Section 5(a) and that, as of the Closing Date, the Company has satisfied all conditions on its part to be satisfied hereunder on or prior thereto.
(f) The Initial Purchaser shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers Purchaser and counsel for the Initial Purchasers)Purchaser, dated of Xxxxxxxx & Xxxxx LLP, counsel for the Company, to the effect set forth in Exhibit A hereto.
(g) At the time this Agreement is executed and at the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) The Initial Purchasers Purchaser shall have received on from PricewaterhouseCoopers LLP, independent public accountants for the Company, dated as of the date of this Agreement and as of the Closing Date an opinion (Date, customary “comfort” letters addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchasers Purchaser and counsel for the Initial Purchaser with respect to the financial statements and certain financial information of the Company and its subsidiaries contained in the Offering Memorandum.
(h) The Initial Purchasers)Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and Purchaser, of Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, covering such matters as are customarily covered in such opinions.
(i) Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers)Purchaser, dated 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel the Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request.
(k) The Company and each the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof.
(l) The Company and the Initial Purchaser shall have entered into the Registration Rights Agreement and the Initial Purchaser shall have received counterparts, conformed as executed, thereof.
(m) The Company shall have obtained the Bank Consent as described in the Offering Memorandum and as may be reasonably satisfactory to the Initial Purchaser.
(n) The Notes shall have been approved for trading on PORTAL.
(o) The Company shall use the net proceeds from the sale of thethe Initial Notes in the manner described in the Offering Memorandum under the caption “Use of Proceeds.”
(p) All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchaser. The Company shall furnish the Initial Purchaser with such conformed copies of such opinions, certificates, letters and other documents as it shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Innophos Investment Holdings, 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Arnall Golden & XxxxxxGregory, LLP, counsel for the Xxxxxxy and the Guarantors, to the effect that:
(i) each of the Company and its subsidiaries is duly incorporated 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 (or 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, 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, nonassessable and not subject to any preemptive or similar rights except as set forth in the documents relating to the Equity Financing;
(iv) all of the outstanding shares of capital stock or membership interests of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are owned by the Company, free and clear of any Lien, except as provided in the Credit Agreement;
(v) the 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;
(x) the Guarantees have been duly authorized and, when the Initial 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 Guarantees endorsed thereon will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Guarantors, enforceable against each of the Guarantors 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;
(xi) each of the 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, in executed and delivered by the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States Company and the laws Guarantors and is a valid and binding agreement of the State of New York.
(f) 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 and each of the GuarantorsGuarantor, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to 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 theacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xiv) 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;
(xv) the Exchange Notes have been duly authorized;
(xvi) the statements under the captions "The Sprint PCS Agreements," "Description of Our Indebtedness," "Principal Stockholders," "Certain Relationships and Related Transactions," "Regulation of the Wireless Industry," "Description of Units," "Description of Notes," "Description of Warrants," "Description of Capital Stock," "Issuance of Convertible Preferred Stock," "Certain United States Federal Income Tax Considerations" and "Plan of Distribution" 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 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 on the date hereof and 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 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 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 Circular Memorandum, other than as set forth in the Offering Circular 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 involving a reasonably certain prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any adverse change or any adverse development involving a reasonably certain prospective 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 the Initial Purchasers' your reasonable judgment, is material and adverse and, in the Initial Purchasers' your reasonable judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(y), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Snelx & XxxxxxXilmxx X.X.P., counsel for the Company and the Guarantors, substantially in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New YorkB hereto.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxAkin, Nevada Xxmp, Xxraxxx, Xxuex & Xeld, X.L.P., counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from Ernst & Young, LLP and counsel Maulxxx & Xenkxxx, xxdependent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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, dated conformed as executed, of the Indenture which 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 prior 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, at or prior to the Closing Date.
(l) The Company shall have acquired the capital stock of Addison Structural Services, Inc. prior to or simultaneously with the Closing.
(m) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel Exhibit I hereto which shall be executed by each Guarantor and delivered to the Company and each of theInitial Purchaser on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Schuff Steel Co)
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 the Guarantors its subsidiaries contained in this Agreement shall be true and correct 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 Guarantor 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any material adverse change or any development 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer Secretary of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(x), 9(a) and 9(c)) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Gardere Wynnx Xxxxxx & XxxxxxXiggx, X.L.P., counsel for the Company and the GuarantorsCompany, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of effect that:
(i) the United States and Company has been duly incorporated or formed, is validly existing as a corporation in good standing under the laws of Delaware and has the State of New York.corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(fii) The 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 shall have received on Purchaser in accordance with the Closing Date an opinion (in form and substance satisfactory terms of this Agreement, will be entitled to the Initial Purchasers benefits of the Indenture and counsel to will be valid and binding obligations of the Initial Purchasers)Company, dated enforceable in accordance with their terms except as (x) the Closing Dateenforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of Xxxxxxx Xxxxxxacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(iii) the Indenture has been duly authorized, Nevada counsel to executed and delivered by the Company and each is a valid and binding agreement of the GuarantorsCompany, substantially to enforceable against the effect set forth Company in Exhibit C hereto. In providing such opinionaccordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, such counsel shall opine as to insolvency, fraudulent transfer or similar laws affecting creditors' rights generally and (y) rights of acceleration and the laws availability of the State equitable remedies may be limited by equitable principles of Nevada.general applicability;
(giv) The Initial Purchasers shall have received on this Agreement has been duly authorized, executed and delivered by the Closing Date an opinion Company;
(in form v) the Registration Rights Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to delivered by the Company and each is a valid and binding agreement of thethe Company, enforceable against the Company in accordance with its terms, except as (x) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer 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) the enforceability of the indemnification provisions thereof may be limited by federal and state securities laws;
(vi) the Exchange Notes have been duly authorized;
(vii) the statements under the captions "Risk Factors," "Description of the Secured Notes, " "Description of the New Senior Notes," "Description of Certain Indebtedness," "United States Federal Income Tax Considerations for Non-U.S. Holders," "Description of Security for the Secured Notes," "Plan of Distribution," "Notice to Investors in the Secured Notes" and "Notice to Investors in the New Senior Notes," in the Offering Memorandum, insofar as such statements constitute a summary of legal matters, fairly present in all material respects such legal matters;
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 are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors Guarantors, contained in this Agreement shall be true and correct 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any adverse change or any development involving a prospective 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 the Initial Purchasers' reasonable Purchaser's judgment, is material and adverse and, in the Initial Purchasers' reasonable Purchaser's judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers shall have received on the Closing Date (i) a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(bb), 9(a) and 9(c)9(b) and stating that the Company and each of the Guarantors has complied in all material respects with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date; and (ii) a certificate dated the Closing Date, signed by the President and Chief Financial Officer of the Company and an executive officer and a financial officer of each of the Guarantors, stating that the industry, statistical and market-related data included in the Offering Memorandum has been reviewed by such persons and, to the best knowledge of such persons, subject to the risks and limitations described in the Preliminary Offering Memorandum and the Offering Memorandum, is true and accurate in all material respects and is based on or derived from sources which the Company and the Guarantors believe to be reliable and accurate, which certificate shall be in form and substance reasonably satisfactory to counsel for the Initial Purchaser.
(e) The Initial Purchasers 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 Milbank, Tweed, Xxxxxx & 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 Purchasers Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price 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 & XxxxxxXxxxxxxxx LLP, counsel for the Company The O.S. Xxxxx Company, and the GuarantorsXxxxx & Xxxxxxx, in the form attached hereto as Exhibit B. In providing such opinioncounsel for United Musical Instruments Holdings, such counsel shall opine as Inc. and United Musical Instruments USA, Inc., to the federal laws of the United States effect set forth in Annexes C and the laws of the State of New YorkD, respectively.
(fh) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to for the Initial PurchasersPurchaser), dated the Closing Date, of Xxxxxxx XxxxxxFish & Xxxxxxxxxx, Nevada intellectual property counsel to for the Company and each of the GuarantorsCompany, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.Annex E.
(gi) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers)opinion, dated the Closing Date, of HolmeSkadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Colorado 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 executed and at the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchaser from Deloitte & Touche LLP independent public accountants, 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.
(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 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 each the Guarantors.
(n) On or prior 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 thethe 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.
(p) Since the date hereof, there shall not have occurred any material adverse change or any material adverse development involving or concerning the Company's Chairman of the Board (as of the date hereof) which, in the sole discretion of the Initial Purchaser, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Memorandum.
(q) Prior to the Closing Date, 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 supplemental indenture to the Selmer Notes Indenture satisfactory to the Initial Purchaser, in 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 Purchaser to purchase the Series A Notes Securities 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 its subsidiaries contained in this Agreement shall be true and correct 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any material adverse change or any development 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(dc) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer Principal Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(ff), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(ed) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Gardere Wynnx Xxxxxx & XxxxxxXiggx, X.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated or formed, is validly existing as a corporation in good standing under the laws of 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;
(ii) the Units to be issued and sold by the Company hereunder have been duly authorized, and when issued and delivered to the Initial Purchaser against payment therefor as provided in this Agreement, will have been validly issued and will be fully paid and non-assessable, and the Guarantorsissuance of such Restricted Preferred Stock is free of any preemptive or similar rights;
(iii) the Preferred Stock to be issued and sold by the Company hereunder has been duly authorized, and when issued and delivered to the Initial Purchaser against payment therefor as provided in this Agreement, will have been validly issued and will be fully paid and non-assessable, and the issuance of such Preferred Stock is free of any preemptive or similar rights;
(iv) the Dividend Shares, to be issued as dividends on the Preferred Stock, have been duly authorized, and when issued and delivered to the holders of the Preferred Stock as provided in the form attached hereto as Exhibit B. In providing Certificate of Designation after the due and proper declaration of such opiniondividends by the Board of Directors, will have been validly issued and will be fully paid and non-assessable, and the issuance of such counsel shall opine as Dividend Shares would be free of any preemptive or similar rights;
(v) the Warrants to be issued and sold by the Company hereunder have been duly authorized, and when issued and delivered to the federal laws Initial Purchaser against payment therefor as provided in this Agreement, will have been validly issued and will be fully paid and non-assessable, and the issuance of such Warrants is free of any preemptive or similar rights;
(vi) the Warrant Shares to be issued upon exercise of the United States Warrants have been duly authorized, and when issued and delivered to holders against payment therefor as provided in the Warrant Agreement, will have been validly issued and will be fully paid and non-assessable, and the laws issuance of such Warrant Shares will be free of any preemptive or similar rights;
(vii) the Certificate of Designation has been duly authorized, executed and filed with the Secretary of State of the State of New York.Delaware and the Amended and Restated Certificate of Incorporation of the Company, including the Certificate of Designation forming part thereof, sets forth the rights, preferences and priorities of the Preferred Stock and the Dividend Shares;
(fviii) The Initial Purchasers shall have received on the Closing Date an opinion (in form Warrant Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to delivered by the Company and each is a valid and binding agreement of the GuarantorsCompany, substantially to enforceable against the effect set forth Company in Exhibit C hereto. In providing such opinion, such counsel shall opine accordance with its terms except as to (x) the laws Enforceability Exceptions and (y) the availability of the State equitable remedies may be limited by equitable principles of Nevada.general applicability;
(gix) The Initial Purchasers shall have received on the Closing Date an opinion (in form Unit Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to delivered by the Company and each is a valid and binding agreement of thethe Company, enforceable against the Company in accordance with its terms except as to (x) the Enforceability Exceptions and (y) the availability of equitable remedies may be limited by equitable principles of general applicability;
(x) the form of Indenture has been duly authorized, and when the Indenture has been executed and delivered by the Company after due and proper authorization by the Board of Directors of the exchange of the Preferred Stock for the Exchange Debentures in accordance with the terms of the Certificate of Designation, will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as to (x) the Enforceability Exceptions and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(xi) the form of Exchange Debenture has been duly authorized and, when the Exchange Debentures have been executed and authenticated in accordance with the provisions of the Certificate of Designation and the Indenture after due and proper authorization by the Board of Directors of the exchange of the Preferred Stock for the Exchange Debentures and delivered to holders of the Preferred Stock in accordance with the terms of the Certificate of Designation and the Indenture, 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 to (x) the Enforceability Exceptions and
Appears in 1 contract
Samples: Purchase Agreement (R&b Falcon Corp)
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 on the date hereof and in all material respects on the Closing Date with the same force and effect as if made on and as of the date hereof Closing Date, provided that the representations and warranties qualified by "materiality" shall be true and correct 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 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 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 Circular other than as set forth in the Offering 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Partnership and its subsidiariessubsidiaries and El Paso Finance, taken as a whole, and (ii) there shall not have been any change or any development 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 their subsidiaries and (iii) neither the Company Issuers nor any of its 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.;
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company General Partner and El Paso Finance and each of the Subsidiary Guarantors, confirming the matters set forth in Sections 6(ee), 9(a) and 9(c).9(b) and stating that each of the Issuers and the Subsidiary Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date;
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Akin, Xxmp, Xxraxxx, Xxuex & XxxxxxXeld, X.L.P., counsel for the Company Issuers and the Subsidiary Guarantors, to the effect that:
(i) Each of the Partnership and its Restricted Subsidiaries and El Paso Finance, as applicable, has been duly 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 form attached hereto as Exhibit B. In providing such opinionOffering Circular and to own, such counsel shall opine as to the federal laws lease and operate its properties;
(ii) Each of the United States 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 New York.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 such jurisdictions, which are the only jurisdictions (other than offshore in the Gulf of Mexico) in which the business of the General Partner or its 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;
(fiv) The Initial Purchasers shall 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 Partnership with a 1.0% general partner interest in the Partnership;
(v) the Series A Notes have received on been duly authorized by each of the Closing Date an opinion (Issuers and, when executed and authenticated in form accordance with the provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel in accordance with the terms of this Agreement, will be entitled to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each benefits of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws Indenture and will be valid and binding obligations of the State Issuers, enforceable in accordance with their terms except as may be limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally; (ii) general principles of Nevada.
equity, including principles of commercial reasonableness, good faith and fair dealing (gregardless of whether enforcement is sought in a proceeding at law or in equity); (iii) The Initial Purchasers shall have received on commercial reasonableness and unconscionability and an implied covenant of good faith and fair dealing; (iv) the Closing Date an opinion power of the courts to award damages in lieu of equitable remedies; and (in form v) the limitations imposed by rights to indemnification and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of thecontribution thereunder may be limited by Federal or 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 Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All Subsequent to the representations execution and warranties delivery of the Company and the Guarantors contained in this Agreement shall be true and correct 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 prior to 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 intended or potential or intended downgrading, suspension or withdrawal of, downgrading 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, any in the rating of the Company or any Guarantor or any securities of the Company or any Guarantor (including, without limitation, the placing of accorded any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) Company's debt securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, ; and
(ii) there shall not have occurred any change, nor shall notice have been given of or any potential or intended development involving a prospective change, in the outlook for any rating condition, financial or otherwise, or in the earnings, business or operations of the Company or any Guarantor by any such rating organization and (iii) no such rating organization shall have given notice its subsidiaries, taken as a whole, from 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 Circular other than as set forth in the Offering Circular Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any 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)that, in the judgment of the Initial Purchasers' reasonable judgment, is material and adverse andand that makes it, in the judgment of the Initial Purchasers' reasonable judgment, makes it impracticable impractica ble to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 9(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) No action shall have been taken (including the issuance of any stop order) 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, have a Material Adverse Effect;
(d) The Initial Purchasers shall have received on the Closing Date a certificate an opinion (satisfactory to you and your counsel), dated the Closing Date, signed of Xxxxxx & Xxxxxxx, counsel for the Company, to the effect that:
(i) the Company and its subsidiaries listed on a schedule to such opinion (collectively, the "Material Subsidiaries") have each been duly incorporated and are validly existing and in good standing under applicable corporate law of their respective states of incorporation. The Company and its Material Subsidiaries each have the corporate power and authority to own, lease and operate their respective properties and to conduct their respective businesses as described in the Offering Memorandum;
(ii) this Agreement has been duly authorized, executed and delivered by the Chief Executive Officer Company;
(iii) 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;
(iv) the statements in the Offering Memorandum under the captions "Exchange Offer; Registration Rights," "Description of Notes," and "Plan of Distribution" (but only the statements that summarize the provisions of this Agreement) insofar as such statements constitute a summary of legal mat ters, documents or proceedings referred to therein, are accurate in all material respects;
(v) the Indenture 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;
(vi) 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 in accordance with its terms;
(vii) the execution, delivery and performance by the Company of this Agreement and the Treasurer other Operative Documents and the consummation of the transactions contemplated hereby and thereby will not (A) to the best of such counsel's knowledge, require any consent, approval, authori zation or other order of, or filing with, any federal, California, New York, Illinois or District of Columbia court or governmental agency or body (except such as may be required under state securities or Blue Sky laws), (B) conflict with or constitute a breach of any of the terms or provisions of the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, or (C) vio- late or conflict with any federal, California, New York, Illinois or District of Columbia statute, rule or regulation applicable to the Company or its subsid iaries or the General Corporation Law of the State of the Delaware (other than federal or state securities laws, which are specifically addressed elsewhere herein), except for such conflicts and violations as to which the Company has obtained the necessary consents or waivers;
(viii) neither the Company nor any of the Subsidiaries is an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(ix) 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 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;
(x) the Offering Memorandum, as of its date, and each amendment or supplement thereto, as of its date, complied with the requirements of Rule 144A(d)(4) of the Act;
(xi) when the Series A Notes are issued and delivered pursuant to this Agreement, the Series A Notes will not be of the same class (within the meaning of Rule 144A under the Act) as any securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system; and
(xii) 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 the accuracy of the Initial Purchasers' representations and agreements contained in Section 7 of this Agreement, and, in the case of Exempt Resales, compliance with the terms of the Notes. Such counsel shall also state that they have 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 and their counsel, at which the contents of the Offering Memorandum and related matters were discussed and, although they are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except as set forth in paragraph (iv) above) and have not made any independent check or verification thereof, during the course of such participation, no facts came to their attention that caused them to believe that the Offering Memorandum (as amended or supplemented, if applicable), as of its date or as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel shall express no belief with respect to the financial statements and other financial data included or incorporated by reference in or omitted from the Offering Memorandum. In rendering the opinion set forth in paragraphs (iii), (v) and (vi) above, such counsel may state that such opinion is subject to the following exceptions, limita tions and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent transfers or obligations, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or law, and the discretion of the court before which any proceeding therefor may be brought; and (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)shall so state therein.
(e) The Initial Purchasers Representatives shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers)opinion, dated the Closing Date, of Dechert Price & XxxxxxXxxxxxxx X. Xxxxx, Executive Vice President, Chief Legal and Administrative Officer and Secretary of the Company, to the effect that:
(i) to the best of such counsel's knowledge, there is no action, suit or proceeding before or by any court or governmental agency or body pending against the Company or any Subsidiary or any of their respective properties which might result, singly or in the aggregate, in a Material Adverse Effect.
(ii) to such counsel's knowledge, the execution and delivery of the Purchase Agreement, the Registration Rights Agreement and Indenture by the Company does not violate any order of any court or govern mental agency or body having jurisdiction over the Company or any of its properties; and
(iii) to such counsel's knowledge, all of the outstanding capital stock of each of the Subsidiaries is owned of record, directly by the Com pany or by a subsidiary of the Company, either directly or indirectly, free and clear of any security interest, claim, lien or encumbrance, other than any security interests which may be described in the Offering Memorandum; to such counsel's knowledge, there are no outstanding rights, warrants or options to xx xxxxx, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in any Subsidiary, except as may be described in the Offering Memorandum. Such counsel shall also state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company Company, and representatives of the GuarantorsInitial Purchasers and their counsel, 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 in the Offering Memorandum and has not made any independent check or verification thereof, during the course of such participation (relying as to materiality to the extent deemed appropriate upon the statements of officers and other representatives of the Company), no facts came to such counsel's attention that caused such counsel to believe that the Offering Memorandum (as amended or supplemented, if applicable), as of its date or as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the form attached hereto as Exhibit B. In providing such opinionlight of the circumstances under which they were made, not misleading; it being understood that such counsel shall opine as express no belief with respect to the federal laws of financial statements, schedules and other financial and statistical data included or incorporated by reference in the United States and the laws of the State of New YorkOffering Memorandum.
(f) 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)opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx Xxxxxx& Xxxx LLP, Nevada special counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on the Closing Date, a letter dated the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers from Deloitte & Touche LLP, independent public accountants, containing the information and counsel statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers with respect to the financial statements and certain financial information included or incorporated by reference in the Offering Memoran dum.
(h) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(i) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received a counterpart, conformed as executed, thereof.
(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 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 at or prior to the Closing Date.
(l) On or prior to the Closing Date, the Company shall have received the Bank Consent, in form and substance reasonably satisfactory to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(z), 6(ii), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Harwxxx Xxxaxx Xxxx Xxxxxxx & XxxxxxXannxx, X.C., counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. 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 providing giving such opinion, such counsel shall opine as opinion with respect to the federal laws 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 preparation of the United States Offering Memorandum and the laws any amendments or supplements thereto and review and discussion of the State 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 matters of New YorkYork law.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxFriex, Nevada counsel Xxanx, Xxrrxx, Xxrixxx & Xacoxxxx, xxunsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from Arthxx Xxxexxxx XXX, independent public accountants, containing the information and counsel statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(h) The Initial Purchasers shall have received, dated at the time this Agreement is executed and at the Closing Date, of Holmeletters dated the date hereof or the Closing Date, Xxxxxxx as the case may be, in form and substance satisfactory to the Initial Purchasers from Ernst & Xxxx Young LLP, Colorado counsel 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.
(i) 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 and each the Guarantors, in the form attached as an exhibit to the 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 thethe 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 and the Guarantors have agreed, not to directly or indirectly offer, 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 sale of or otherwise dispose of or transfer any debt securities, or file a registration statement under the Act with respect to the foregoing, without the prior written consent of Donaxxxxx, Xxfkxx & Xenrxxxx Xxxurities Corporation on behalf of the Initial Purchasers, for a period of 90 days after the date of the Offering Memorandum; provided that, notwithstanding the foregoing, the Company may borrow under the Bank Credit Facility and may file and cause to become effective a registration statement under the Act with respect to the Series B Notes.
Appears in 1 contract
Samples: Purchase Agreement (Pharmerica Inc)
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 and the Guarantors contained in this Agreement shall be true and correct 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 At the Closing Date, respectively.
(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 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) 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 notice have been given of or 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 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 Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiariesSubsidiaries, taken as a whole, and 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 in the capital stock event or in the long-term debt of development relating to or 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 any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer opinion of the Company and its counsel or the GuarantorsInitial Purchasers and their counsel, confirming requires the matters set forth making of any addition to or change in Sections 9(a) and 9(c).the Memorandum in order to state a material fact required by the Act or any other law to be stated therein or necessary in
(ec) The Initial Purchasers 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 local counsel is acceptable to you, (2) 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 form and substance satisfactory to them and their counsel, and (3) counsel shall state in their opinion that they believe that they and the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, are justified in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New Yorkrelying thereon.
(fd) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and of King & Spalding, counsel to for the Initial Purchasers), dated the Closing DateDate and addressed to you, of Xxxxxxx Xxxxxxas Initial Purchasers, Nevada counsel with respect to the Company and each matters referred to in clause (12) under the captions in the Memorandum entitled "Description of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form Notes," and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the"Exchange Offer; Registration Rights"; clauses
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 the Guarantors Parent contained in this Agreement and the Collateral Documents shall be true and correct 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 at 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 Issuers, Parent, or any securities of the Company Issuers or any Guarantor 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 notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuers or any Guarantor 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 Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management contractual relationships, management, operations or operations prospects of the Company and its subsidiariesIssuers, taken as a wholeParent or any of the Subsidiaries, and (ii) there shall not have been any change or any development 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 subsidiaries the Subsidiaries and (iii) neither the Company nor any of its subsidiaries 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 the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, is material and adverse and, in the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Issuers and Parent dated the Closing Date, signed in each case by the Chief Executive Officer and the Treasurer Chief Financial Officer of the Company Issuers and Parent, as applicable, (i) stating that the Guarantors, 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 9(aclause 9(b) and 9(c)) hereof and (iii) stating that the Issuers and Parent have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Xxxxxxxx & XxxxxxXxxxxxxx LLP, counsel for the Company and the GuarantorsService, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New Yorkmatters set forth in Exhibit C hereto.
(f) The Initial Purchasers 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 Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers Purchaser from each of (i) Xxxxx Xxxxxxxx LLP for the twelve month period ended September 30, 2004 and counsel 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 type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)Purchaser with respect to the financial statements and certain financial information of Parent contained in the Offering Circular.
(i) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL.
(j) The Issuers, dated 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 a party and the Initial Purchaser shall have received fully executed copies thereof. The Operative Documents shall be in 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 of the Operative Documents and transactions contemplated by the Offering Circular to be 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 Xxxxxxx Xxxxxxthe Series A Notes or the Guarantees thereof or the consummation of any of the other transactions contemplated by the Operative Documents; no action, Nevada counsel suit or proceeding shall have been commenced and be pending against or affecting or, to the Company and each knowledge of the GuarantorsIssuers and Parent, substantially 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 effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws use of the State of NevadaOffering Circular, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(gm) The Initial Purchasers Stock Purchase Agreement shall be in full force and effect. Xxxxxx shall have received on designated the Closing Date an opinion (in form and substance satisfactory Company to purchase the capital stock of Parent owned by the Sellers pursuant to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theStock Purchase Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Interdent Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Series A Notes under Notes, as provided for in this Agreement are Agreement, shall be subject to the satisfaction of each of the following conditionsconditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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 this Agreement and on the Closing Date, respectively. The Company shall have performed or complied with all of the agreements contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(b) On No stop order suspending the qualification or after exemption from qualification of the date hereof, (i) there Notes in any jurisdiction 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) issued and no proceeding 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 purpose shall not have occurred any change, nor shall notice have been given of any potential commenced or intended change, in the outlook for any rating of the Company shall be pending 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 marketedthreatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance of the Notes or the Exchange Offer; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company threatened against the Company before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would result in a Material Adverse Effect.
(d) Since the respective dates as of which information is given in the Offering Circular other than Memorandum, except as expressly set forth therein, neither the Company nor any of its subsidiaries had any material liabilities or obligations, direct or contingent, not in the ordinary course of business, that were not set forth in the Company's consolidated balance sheet as of September 30, 1997 or in the notes thereto. Since the respective dates as of which information is given in the Offering Memorandum and up to the Closing Date, except as otherwise expressly set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (ia) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations none of the Company and or its subsidiariessubsidiaries has (1) incurred any liabilities or obligations, taken as direct or contingent, that would, either individually or in the aggregate, result in a wholeMaterial Adverse Effect or (2) entered into any material transaction not in the ordinary course of business, and (iib) there shall has not have been any change event or development in respect of the capital stock business, development or in the long-term debt financial condition of the Company or any of its subsidiaries and (iii) neither the Company nor any of its subsidiaries shall have incurred any liability that would, either individually 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 the Initial Purchasers' reasonable judgmentaggregate, is material and adverse and, result in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)Material Adverse Effect.
(e) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by (i) the Chief Executive Officer and (ii) the chief financial or accounting officer of the Company confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 7.
(f) The Initial Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Xxxxxx, Xxxx & XxxxxxXxxxxxxx LLP, counsel for the Company and the GuarantorsCompany, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.effect that:
(fi) 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 and each of Standard Pacific Savings, F.A. ("Savings"), Standard Pacific of Texas, Inc., Standard Pacific of Orange County, Inc., and Standard Pacific of Fullerton, Inc. (together, the Guarantors"Subsidiaries") have been duly organized and are validly existing as corporations;
(ii) the Indenture and the Notes conform in all material respects to the descriptions thereof in the Offering Memorandum;
(iii) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly executed and delivered by the Company;
(iv) the Indenture has been duly and validly authorized, substantially executed and delivered by the Company, and constitutes the valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect set forth in Exhibit C hereto. In providing such opinionof any applicable bankruptcy, such counsel shall opine as reorganization, insolvency, moratorium, arrangement and similar laws of general application relating to or affecting creditors' rights, including, without limitation, the effect of statutory or other law regarding fraudulent conveyances, fraudulent transfers and preferential transfers, and (B) to the limitations imposed by general principles of equity (regardless of whether considered in a proceeding at law or in equity);
(v) the Notes are in the form contemplated by the Indenture, have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the Indenture and delivered against payment pursuant to 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,subject (A) to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium, arrangement and similar laws of general application relating to or affecting creditors' rights, including, without limitation, the State effect of Nevada.
statutory or other law regarding fraudulent conveyances, fraudulent transfers and preferential transfers, and (gB) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers limitations imposed by general principles of equity (regardless of whether considered in a proceeding at law or in equity); and counsel to the Initial Purchasers)purchase and sale of the Notes in accordance with the terms and provisions of this Agreement and the consummation of the transactions contemplated under this Agreement, dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to Indenture and the Company and each of theNotes will not violate the provisions of
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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and Closing Date, or on the each Option Closing Date Date, if any, with the same force and effect as if made on and as of the date hereof and Closing Date or on the each Option Closing Date, respectivelyif 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable UBS’ judgment, is material and adverse and, in the Initial Purchasers' reasonable UBS’ judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Xxxxxxx X. Xxxxxx and C. Xxxx Xxxxxx, in their capacities as President and Chief Executive Officer Officer, and the Treasurer Chief Financial Officer, respectively, of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers (A) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Dechert Price Xxxx Xxxx Xxxx & XxxxxxFreidenrich 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 Document and to own, lease and operate its properties;
(ii) the Notes and the Indenture have been duly authorized, executed and delivered by the Company;
(iii) the Notes are convertible into shares of 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 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-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;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the GuarantorsCompany 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;
(vi) the statements under the captions “Description of Notes,” “Description of Capital Stock” and “Certain United States Federal Income Tax Considerations” in the form attached Offering Memorandum, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present in all material respects such legal matters 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 Exhibit B. In providing such opinionset forth on Schedule F hereto or in the Offering Memorandum, such counsel shall opine 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 federal laws requirements of the United States TIA, and the laws rules and regulations of the State Commission applicable to an indenture which is qualified thereunder. It is not necessary in connection with the offer, sale and delivery of New York.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory Notes to the Initial Purchasers and counsel in the manner contemplated by this Agreement or in connection with the Exempt Resales to qualify the Initial Purchasers), dated Indenture under the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to TIA; and
(xiii) no registration under the Company and each Act of the Guarantors, substantially to Securities is required for the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws sale of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory 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 counsel to compliance with, the Initial Purchasers)’ representations and agreements contained in Section 7 of this Agreement, dated 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 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 Holmea material fact or omits to state a material fact necessary in order to make the statements therein, Xxxxxxx in the light of the circumstances under which they were made, not misleading. The opinion of Xxxx Xxxx Xxxx & Xxxx LLP, Colorado counsel Freidenrich LLP described in Section 9(e)(A) above shall be rendered to you at the request of the Company and each 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 thethe 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 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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and Closing Date, or on the Option Closing Date Date, if any, with the same force and effect as if made on and as of the date hereof and Closing Date or on the Option Closing Date, respectivelyif 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 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 notice have been given of any potential or intended change, in the outlook for any rating 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.the
(c) Since the respective dates as of which information is given in the Offering Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(dd), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Dechert Price & XxxxxxHale xxx Dorr, XXP, counsel for the Company, to the effect that:
(i) each of the Company and the Guarantorsits subsidiaries has been duly incorporated, is validly existing as a corporation in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to own its property and to conduct its business as described in the Offering Memorandum;
(ii) the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in The Commonwealth of Massachusetts and the State of New York.California, which, to such counsel's knowledge, are the only states in which the Company owns or leases any real property in the United States;
(fiii) The Initial Purchasers shall all the outstanding shares of capital stock of the Company have received on been duly authorized and validly issued and are fully paid and non-assessable;
(iv) all of the Closing Date an opinion 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 Liens (in form and substance satisfactory it being understood that counsel acceptable to the Initial Purchasers may provide such opinion in lieu of Hale xxx Dorr XXX);
(v) the Notes have been duly authorized and, when executed and counsel authenticated in accordance with the provisions of the Indenture and delivered to and paid for by
(vi) the Initial Purchasers)Indenture has been duly authorized, dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to executed and delivered by the Company and each is a valid and binding agreement of the GuarantorsCompany, substantially enforceable against the Company in accordance with 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;
(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 in accordance with the terms of the Notes, will be validly issued, fully paid and nonassessable; the issuance of the Notes, and the Common Stock issuable upon conversion thereof, will not be subject to any pre-emptive rights under the effect set forth in Exhibit C hereto. In providing such opinionDelaware General Corporate Law, such counsel shall opine as to the certificate of incorporation or by-laws of the State of Nevada.Company or, to such counsel's knowledge, similar rights granted by contract;
(gviii) 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;
(x) The Initial Purchasers shall have received on the Closing Date an opinion (in form Registration Rights Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to delivered by the Company and each is a valid and binding agreement of thethe 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) except as to indemnification and contribution provisions under the Registration Rights Agreement may be limited under applicable law;
(xi) the statements under the captions "Description of Convertible Notes," "Description of Capital 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" in the Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly 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 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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and Closing Date, or on the each Option Closing Date Date, if any, with the same force and effect as if made on and as of the date hereof and Closing Date or on the each Option Closing Date, respectivelyif 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(aa), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Dechert Price Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & XxxxxxXxxxxxxx, counsel for the Company, to the effect 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 the Guarantors, in the form attached hereto as Exhibit B. shall so state therein. In providing such opinionaddition, such counsel shall opine as to may state that the federal laws of opinions expressed therein are solely for the United States Initial Purchasers' benefit and the laws of the State of New Yorkmay not be relied upon in any manner or for any purpose by any other person.
(f) The Initial Purchasers shall have received on the Closing Date and on each Option Closing Date, an opinion (in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers)opinion, dated the Closing Date, of Xxxxxxx XxxxxxXxxxx & XxXxxxxx, Nevada counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, letters dated the date hereof or the Closing Date or an opinion (Option Closing Date, as the case may be, in the form and substance satisfactory to the Initial Purchasers from Deloitte & Touche LLP, independent public accountants, containing the information and counsel statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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, dated 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 not have failed at or prior to the Closing Date or any Option Closing Date, as the case may be, to perform or comply with any of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel the agreements herein contained and required to be performed or complied with by the Company at or prior to the Company and each of theClosing Date or Option Closing Date, as the case may be.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The several --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Series A Notes under this Agreement are Firm Shares and the Additional Shares, as provided herein, shall be subject to the satisfaction of each of the following conditions, except that with respect to the Additional Shares, references to the Closing Date shall mean the Option Closing Date:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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. The Company shall have performed or complied in all material respects with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(b) On or after The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the day following the date hereofof this Agreement or at such later date and time as to which the Initial Purchasers may agree, (i) there shall not have occurred any downgrading, suspension and no stop order suspending the qualification 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 exemption from qualification of the Company or Shares in 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 directionjurisdiction referred to in Section 4(e) 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 notice have been given of any potential or intended change, in the outlook issued and no proceeding for any rating of the Company or any Guarantor by any such rating organization and (iii) no such rating organization that purpose shall have given notice that it has assigned (been commenced or is considering assigning) a lower rating to the Notes than that on which the Notes were marketedshall be pending or threatened.
(c) 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 Company Shares; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company, threatened against, the Company or the Subsidiaries before any court or arbitrator or any governmental body, agency or official that (1) could reasonably be expected to result in a Material Adverse Effect or (2) has not been disclosed in the Offering Memorandum; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(d) Since the respective dates as of which information is given in the Offering Circular other than Memorandum and except as set forth in contemplated by the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any change in the financial conditionmaterial adverse change, or the earningsany development that is reasonably likely to result in a material adverse change, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change in the capital stock or in the long-term debt debt, or material increase in the short-term debt, of the Company and the Subsidiaries from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any Subsidiary (other than any dividends or distributions paid to the Company) on any class of its subsidiaries capital stock, except for regular dividends paid in respect of the Preferred Stock and (iii) neither the Company nor any of its subsidiaries Subsidiary shall have incurred any liability liabilities or obligationobligations, direct or contingent, the effect of whichthat are material, in any such case described in clause 9(c)(i), 9(c)(ii) individually or 9(c)(iii), in the Initial Purchasers' reasonable judgmentaggregate, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the GuarantorsSubsidiaries, confirming taken as a whole, and that are required to be disclosed on a balance sheet or notes thereto in accordance with generally accepted accounting principles and are not disclosed on the matters set forth latest balance sheet or notes thereto included in Sections 9(a) the Offering Memorandum. Since the date hereof and 9(c)since the dates as of which information is given in the Offering Memorandum, there shall not have occurred any Material Adverse Effect.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers)a certificate, dated the Closing Date, signed on behalf of Dechert Price & the Company by (i) Xxxxx X. Xxxxxx, counsel for Chairman of the Board, President and Chief Executive Officer and (ii) Xxxxxx X. Xxxxxxx, Senior Vice President and Chief Financial Officer, in form and substance reasonably satisfactory to the Initial Purchasers, confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8 and that, as of the Closing Date, the obligations of the Company and the Guarantors, to be performed hereunder on or prior thereto have been duly performed in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New Yorkall material respects.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Kronish Xxxx Xxxxxx & Xxxxxxx XxxxxxLLP, Nevada counsel to for the Company and each of the GuarantorsCompany, substantially to the effect set forth in Exhibit C B hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.---------
(g) The Initial Purchasers shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), of Xxxxxx Xxxx & Xxxxxx LLP, special regulatory counsel to the Company, to the effect set forth in Exhibit C hereto. ---------
(h) The Initial Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, of HolmeXxxxxx & Xxxxxxx, Xxxxxxx & Xxxx LLP, Colorado counsel to the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(i) At the time this Agreement is executed and at the Closing Date the Initial Purchasers shall have received from Ernst & Young LLP, independent public accountants for the Company and its Subsidiaries, dated as of the date of this Agreement and as of the Closing Date, customary comfort letters addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers with respect to the financial statements and certain financial information of the Company and its Subsidiaries contained in the Offering Memorandum.
(j) 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company and the Subsidiaries shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request.
(l) The Company shall have authorized, executed and filed the Certificate of Designation in accordance with Delaware law and each of thethe Initial Purchasers shall have received an original, duly executed by the Company.
(m) The Company shall have entered into each of the Registration Rights Agreement and the Deposit Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(n) The Company shall have deposited the Series F Preferred Stock with the Depositary.
(o) At or prior to the Closing Date, all FCC or state approvals required in connection with the Offering shall have been obtained or applications for such approvals submitted or prepared for submission promptly following the Closing Date and the Company shall have delivered to the Initial Purchasers evidence satisfactory to the Initial Purchasers that such FCC or state approvals have been obtained or applications thereof have been made or prepared for submission promptly following the Closing Date. All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchasers. The Company will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and other documents as it shall reasonably request.
Appears in 1 contract
Samples: Depositary Share Purchase Agreement (Intermedia 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 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 Guarantor 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiariesCompany, taken as a whole, and (ii) there shall not have been any change or any development 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(w), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Xxxxxx & XxxxxxXxxxxxx LLP, counsel for the Company and the GuarantorsCompany, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of effect that:
(i) the United States and 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 State of New York.corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(fii) The Initial Purchasers shall 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 received on a Material Adverse Effect;
(iii) all the Closing Date an opinion outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, nonassessable and not subject to any preemptive or similar rights;
(iv) the Series A Notes have been duly authorized and, when executed and authenticated in form accordance with the provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel in accordance with the terms of this Agreement, will be entitled to the Initial Purchasers)benefits of the Indenture and will be valid and binding obligations of the Company, dated enforceable in accordance with their terms except as (x) the Closing Dateenforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (y) rights of Xxxxxxx Xxxxxxacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(v) the Indenture has been duly authorized, Nevada counsel to executed and delivered by the Company and each is a valid and binding agreement of the GuarantorsCompany, substantially to enforceable against the effect set forth Company in Exhibit C hereto. In providing such opinionaccordance with its terms except as (x) the enforceability thereof may be limited by bankruptcy, such counsel shall opine as to insolvency or similar laws affecting creditors' rights generally and (y) rights of acceleration and the laws availability of the State equitable remedies may be limited by equitable principles of Nevada.general applicability;
(gvi) The Initial Purchasers shall have received on this Agreement has been duly authorized, executed and delivered by the Closing Date an opinion Company;
(in form vii) the Registration Rights Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to delivered by the Company and each is a valid and binding agreement of thethe 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;
(viii) the Series B Senior Notes have been duly authorized;
(ix) the statements under the captions "Management and Directors-- Limitation of Liability, --Consulting and Employment Agreements and -- Certain Relationships and Related Transactions," "Description of Other Indebtedness," "Federal Tax Considerations," "Description of Notes" and "Plan of Distribution" 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 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 and the Guarantors contained in this Agreement shall be true and correct 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, Act and (ii) there shall not have occurred any change, nor shall 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 Guarantor by any such rating organization Company, confirming, as of the 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 Circular Memorandum, other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiariesCompany, taken as a whole, and (ii) there shall not have been any change or any development 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 the Initial Purchasers' reasonable your good faith judgment, is material and adverse and, in the Initial Purchasers' reasonable your 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)Memorandum.
(e) The No action shall have 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, prevent the issuance or sale of any of the Series A Senior Preferred Stock, prevent the consummation of the Transactions or otherwise have a Material Adverse Effect; no action, suit or proceeding shall be pending against or, to the knowledge of the Company, threatened against, the Company or Liberty Group Operating before any court or arbitrator or any governmental body, agency or official which would reasonably be expected to prohibit, interfere with or adversely affect the issuance or sale of the Senior Preferred Stock, the consummation of the Acquisition or otherwise have a Material Adverse Effect; and no stop order, injunction, restraining order, or order of any nature preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(f) On the Closing Date, the Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers)opinion, dated the Closing Date, of Dechert Price Mayex, Xxowx & XxxxxxXlatx, counsel xxunsel for the Company and the GuarantorsCompany, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as substantially to the federal laws of the United States and effect that:
(1) The Company has been duly organized, is validly existing as a corporation in good standing under the laws of the State of New YorkDelaware and has full corporate power and authority to carry on its business and to own,
(2) The Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which 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.
(f3) All of the outstanding capital stock of the Company (i) has been duly authorized and validly issued and (ii) is fully paid, nonassessable and, to 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.
(4) This Agreement has been duly authorized, executed and delivered by the Company.
(5) The 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 Purchasers shall have received on Purchaser in accordance with the Closing Date an opinion 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 form accordance with the provisions of the Certificate of Designations and substance satisfactory 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, 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 the enforceability thereof may be limited by bankruptcy, 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 Purchasers Purchaser, the Registration Rights Agreement is a valid and counsel 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 Initial Purchasers)validity, dated 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, of Xxxxxxx Xxxxxx, Nevada counsel to will have been duly executed and delivered by the Company and each Liberty Group Operating and will be valid and binding agreements of the GuarantorsCompany and Liberty Group Operating, substantially to enforceable against the effect set forth Company and Liberty Group Operating in Exhibit C hereto. In providing such opinion, such counsel shall opine as to accordance with their terms (assuming the laws due execution and delivery of the State 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 (ii) for general principles of Nevadaequity (regardless of whether enforcement is brought in a proceeding at law or in equity).
(g11) The Initial Purchasers shall have received on statements in the Closing Date an opinion (Offering Memorandum under the captions "Summary--The Acquisition," "Certain Relationships and Related Transactions," "The Acquisition," "Description of Debentures," "Description of Other Indebtedness" and "Description of Holdings' Capital Stock" and under the caption "The Offering" in form the supplement describing the Senior Preferred Stock, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly summarize in all material respects the information called for with respect to such legal matters, documents and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theproceedings.
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 Guarantors Guarantor contained in this Agreement shall be true and correct 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 the Guarantor or any securities of the Company or any 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 notice have been given of any potential or intended change, in the outlook for any rating of the Company or any the 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 Circular other than as set forth in the Offering 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Senior Notes on the terms and in the manner contemplated in the Offering Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a), 9(b) and 9(c)) hereof.
(e) 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 Dechert Price Skadden, Arps, Slate, Meaxxxx & XxxxxxFlox XXP, counsel for the Company and the GuarantorsGuarantor, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of matters set forth in Exhibit B hereto and such additional matters or modifications as to which the United States and the laws of the State of New Yorkparties 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 to for the Initial Purchasers), dated the Closing Date, of Xxxxxxx XxxxxxMicxxxx Xxxx, Nevada Xsq., general counsel to for the Company and each of the GuarantorsGuarantor, substantially as to the effect matters set forth in Exhibit C hereto. In providing hereto and such opinion, such counsel shall opine additional matters and modifications as to which the laws of the State of Nevadaparties 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 to for the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado special Pennsylvania counsel to 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 time this Agreement is executed and at the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from each of theArtxxx Xndxxxxx X.L.P. and 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 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 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 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 Guarantor 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(ee), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price of, Xxxxx Xxxx & Xxxxxx, Xxxxxxxx counsel for the Company, to the effect that:
(i) each of the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the 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 State corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) all of New Yorkthe 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 the Company is the registered owner of such shares.
(fiii) 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 shall have received on Purchaser in accordance with the Closing Date an opinion (in form and substance satisfactory terms of this Agreement, will be entitled to the Initial Purchasers benefits of the Indenture and counsel will be valid and binding obligations of the Company, enforceable in accordance with their terms subject to the Initial Purchaserseffect of bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors' rights generally and equitable principles of general applicability and except that rights to indemnity or contribution may be limited by applicable law (as to which such counsel is not required to express an opinion);
(iv) the Indenture has been duly authorized, dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to executed and delivered by the Company and each is a valid and binding agreement of the GuarantorsCompany, substantially enforceable against the Company in accordance with its terms subject to the effect set forth in Exhibit C hereto. In providing such opinionof bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors' rights generally and equitable principles of general applicability and except that rights to indemnity or contribution may be limited by applicable law (as to which such counsel shall opine as is not required to the laws of the State of Nevada.express an opinion);
(gv) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) The Initial Purchasers shall have received on the Closing Date an opinion (in form Registration Rights Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to delivered by the Company and each is a valid and binding agreement of thethe Company, enforceable against the Company in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors' rights generally and equitable principles of general applicability and except that rights to indemnity or contribution may be limited by applicable law (as to which such counsel is not required to express an opinion);
(vii) the Series B Senior Notes have been duly authorized by the Company;
(viii) the statements under the captions "Description of Bank Facility," "Description of Preferred Stock," "Description of Notes," "Notice to Investors" and "Plan of Distribution" 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 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 Guarantors Company's subsidiaries contained in this Agreement shall be true and correct 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 Fincx xx the Company or any Guarantor or any securities of Fincx xx 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 Fincx xx the Company or any Guarantor 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any material adverse change or any development 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Restricted Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer Secretary of both Fincx xxx the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(x), 9(a) and 9(c)) and stating that each of Fincx xxx the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price Gardere Wynnx Xxxxxx & XxxxxxXiggx, X.L.P., counsel for Fincx xxx the Company, to the effect that:
(i) each of Fincx xxx the Company has been duly incorporated or formed, is validly existing as a corporation in good standing under the laws of 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;
(ii) 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 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, 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;
(iv) 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 GuarantorsCompany, enforceable against Fincx xxx the Company in accordance with its terms except as (x) the form attached hereto as Exhibit B. In providing such opinionenforceability thereof may be limited by bankruptcy, such counsel shall opine as 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;
(v) this Agreement has been duly authorized, executed and delivered by Fincx xxx the Company;
(vi) 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 federal laws 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 United States 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 laws availability of the State equitable remedies may be limited by equitable principles of New York.general applicability;
(fvii) The Initial Purchasers shall have received on the Closing Date an opinion (in form Registration Rights Agreement has been duly authorized, executed and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to delivered by Fincx xxx the Company and each 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, fraudulent transfer 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) the enforceability of the Guarantors, substantially to indemnification provisions thereof may be limited by federal and state securities laws;
(viii) the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to Exchange Notes have been duly authorized;
(ix) the laws statements under the captions "Risk Factors," "Description of the State Secured Notes, " "Description of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (New Senior Notes," "Description of Certain Indebtedness," "United States Federal Income Tax Considerations for Non-U.S. Holders," "Description of Security for the Secured Notes," "Plan of Distribution," "Notice to Investors in form the New Senior Notes" and substance satisfactory "Notice to Investors in the Initial Purchasers and counsel to Secured Notes," in the Initial Purchasers)Offering Memorandum, dated insofar as such statements constitute a summary of the Closing Datelegal matters, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of thefairly present in all material respects such legal matters;
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 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 Issuers contained in this Agreement shall be true and correct 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 either Issuer or any securities of the Company or any Guarantor 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 Guarantor securities of 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Holdings and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company either Issuer or any of its their subsidiaries and (iii) neither of the Company Issuers nor any of its 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 the judgment of the Initial Purchasers' reasonable judgmentPurchaser, is material and adverse and, in the judgment of the Initial Purchasers' reasonable judgmentPurchaser, makes it impracticable to market the Series A Notes Units on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the Guarantorseach Issuer, confirming the matters set forth in Sections 6(cc), 9(a), 9(b) and 9(c)) and stating that such Issuer has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price & XxxxxxKennxxx X. Xxxx, counsel Xxneral Counsel for the Company and the GuarantorsIssuers, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States effect that:
(i) each Issuer has been duly incorporated and is validly existing in good standing under the laws of its jurisdiction of organization and has the State of New York.requisite power to enter into the Operative Documents to which it is a party;
(fii) The Initial Purchasers shall all the outstanding shares of capital stock of Insilco are duly authorized and validly issued and are fully paid and non-assessable and have received on not been issued in violation of any preemptive rights pursuant to law or Insilco's certificate of incorporation;
(iii) all the Closing Date an opinion (in form and substance satisfactory shares of capital stock of Holdings outstanding prior to the Initial Purchasers Mergers and counsel the Merger Financing (as such terms are defined in the Offering Memorandum), and any shares of capital stock of Holdings issued subsequent to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel Mergers and prior to the Company 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 all requisite corporate power and authority to own its properties and to carry on its business as now being conducted. Each Issuer and each Significant Subsidiary is a corporation duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the character of its activities requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
(v) all of the Guarantorsoutstanding shares of the capital stock of each Significant Subsidiary are duly authorized, substantially validly issued, and, to such counsel's knowledge, fully paid and nonassessable, and have not been issued in violation of any preemptive rights pursuant to law or in such certificate of incorporation of such Significant Subsidiary, and all of the effect outstanding shares of the capital stock of each Significant Subsidiary are owned by Insilco, however, as set forth in Exhibit C hereto. In providing the Offering Memorandum, all of such opinion, shares have been pledged to Insilco's lenders under the Existing Credit Facility (as such counsel shall opine as term is defined in the Offering Memorandum) and are expected to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory be pledged to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theInsilco's
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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Allied and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its subsidiaries and (iii) neither the Company Allied 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theit
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 and the Guarantors contained in this Agreement shall be true and correct on the date hereof and Closing Date, or on the each Option Closing Date Date, if any, with the same force and effect as if made on and as of the date hereof and Closing Date or on the each Option Closing Date, respectivelyif 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable or inadvisable to market the Series A Notes Securities on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 6(v), 9(a) and 9(c)9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Dechert Price Xxxxxx, Xxxxxxx & XxxxxxXxxxx 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;
(ii) 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 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 availability of equitable remedies may be limited by equitable principles of general applicability;
(iii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the GuarantorsCompany, 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;
(iv) 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;
(vi) 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;
(vii) the statements under the captions "Description of Notes" and "Registration Rights" (other than any reference therein to tax matters, as to which no opinion is expressed) 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 form attached hereto as Exhibit B. 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 providing giving such opinion, such counsel shall opine as opinion with respect to the federal laws 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 United States Offering Memorandum and the laws any amendments or supplements thereto and review and discussion of the State of New Yorkcontents thereof, but are without independent check or verification except as specified.
(f) The Initial Purchasers You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel to for the Initial Purchasers), dated the Closing Date or such Option Closing Date, as the case may be, of Xxxxxxx XxxxxxX. Xxxxx, Nevada counsel 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 each 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 Guarantors, substantially to the effect set forth Company or any of its subsidiaries or result in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws any other impairment of the State rights of Nevada.
the holder of any such Authorization, or (giv) The Initial Purchasers shall have received on 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 Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers)Company, dated the Closing Date, any of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theits subsidiaries or their respective property;
Appears in 1 contract
Samples: Purchase Agreement (Health Management Associates 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 on the date hereof and 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 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 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 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 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 Circular Memorandum, other than as set forth in the Offering Circular 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 involving a prospective change in the financial condition, or the earnings, business, management assets, condition (financial or otherwise), results of operations or prospects of the Company Issuers and its subsidiariesthe Note Guarantors, taken as a whole, and (ii) there shall not have been any change or any development 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Units on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer Presidents and the Treasurer Chief Financial Officers of the Company and the GuarantorsIssuers, confirming the matters set forth in Sections 6(kk), 9(a) and 9(c)9(b) and stating that each of the 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.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Cravath, Swaine & XxxxxxXxxxx, counsel for the Company Issuers and the Guarantors, Note Guarantors substantially in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.A.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxXxxxxx & Xxxxxxx, Nevada counsel for the Initial Purchasers, in form and substance reasonably satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers each of (i) Xxxxxx Xxxxxxxx LLP, (ii) Deloitte & Touche LLP, and counsel (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)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, dated or receive substantially simultaneously with the Closing Dateclosing of the offering of the Units, a counterpart, conformed as executed, of Holmethe Indenture which shall have been entered into by the Issuers, Xxxxxxx & Xxxx LLPthe 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, Colorado counsel to 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 thethe 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 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 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 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 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 Issuers or the Note Guarantors, as the case may be, at or prior to the Closing Date.
(q) The Initial Purchasers shall have received, addressed to 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 under the caption "Management- Employment Agreements."
Appears in 1 contract
Samples: Purchase Agreement (World Almanac Education Group Inc)
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase the Series A Notes Firm Debentures and the Option Debentures, if applicable, under this Agreement on the Closing Date and the Option Closing Date are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantors 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, 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, on the date hereof Closing Date and on the Option Closing Date with the same force and effect as if made on and as of the date hereof Closing Date or the Option 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 or the Option 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 Issuer or any Guarantor of its Subsidiaries or any of its or their respective 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 notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuer or any Guarantor of 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 Debentures than that on which the Notes Debentures were marketed.
(c) Since the respective dates as of which information is given in the Disclosure Package and the Final Offering Circular other than as set forth disclosed in the Disclosure Package and the Final Offering 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 involving a prospective change in the properties, condition (financial conditionor otherwise), or the earnings, business, management or operations of the Company and Issuer or any of its subsidiariesSubsidiaries, taken as a whole, and (ii) there shall not have been any change or any development 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 Subsidiaries and (iii) neither the Company Issuer 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 the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, is material and adverse and, in the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, makes it impracticable to market the Series A Notes Debentures on the terms and in the manner contemplated in the Disclosure Package and the Offering Circular.
(d) The Initial Purchasers You shall have received on each of the Closing Date and the Option Closing Date, if applicable, a certificate dated the Closing Date, as of that date signed by the Chief Chairman, the President or the Executive Officer Vice President and the Treasurer Chief Financial Officer of the Company Issuer
(i) stating that the representations and warranties of the GuarantorsIssuer 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 or the Option Closing Date;
(ii) confirming the matters set forth in Sections 9(aclauses 9(b) and 9(c)) hereof;
(iii) stating that the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date; and
(iv) stating that they have carefully examined the Disclosure Package and the Final Offering Circular and, in their opinion, since the date of the Disclosure Package and the Final Offering Circular no event has occurred which should, under applicable securities laws, have been set forth in a supplement or amendment to the Disclosure Package and the Final Offering Circular.
(e) The Initial Purchasers You shall have received on each of the Closing Date and the Option Closing Date, if applicable, a certificate dated as of such 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 Disclosure Package, the 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 each of the Closing Date and the Option Closing Date, if applicable, an opinion (in form subject to customary qualifications, limitations and substance exceptions and reasonably satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, as of Dechert Price such date of MxXxxxxxx Will & XxxxxxExxxx LLP, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 and each of the GuarantorsIssuer, substantially to the effect set forth in Exhibit C B attached hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers You shall have received on each of the Closing Date and the Option Closing Date an opinion (satisfactory to you and counsel for the Initial Purchaser), dated as of such date of Kasowitz, Benson, Txxxxx & Fxxxxxxx LLP, special litigation counsel for the Issuer, to the effect that the statements under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations —Recent Developments—Tobacco Settlement Agreements” in the Issuer’s Form 10-Q for the quarterly period ended March 31, 2006 (the “Form 10-Q”), under the caption “Business—Legislation, Regulation and Litigation” in the Issuer’s Form 10-K for the fiscal year ended December 31, 2005 and under the caption “Risk Factors— Risks Related to the Business— Litigation and regulation will continue to harm the tobacco industry,” and “Risk Factors— Risks Related to the Business— Lxxxxxx may have additional payment obligations under the Master Settlement Agreement and its other settlement agreements with the states” in the Disclosure Package and the Offering Circular, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, when taken together with the updated disclosure and other statements in Note 8 of the Notes to the Consolidated Financial Statements of the Form 10-Q, in light of the circumstances under which they were made, are accurate and complete and fairly present in all material respects such legal matters, documents and 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, not misleading.
(h) You shall have received on each of the Closing Date and the Option Closing Date an opinion, dated as of such date, of Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchaser, reasonably satisfactory to you.
(i) You shall have received at each of the Closing Date and the Option Closing Date letters dated the date hereof and dated the Closing Date or the Option Closing Date in form and substance satisfactory to you and counsel for the Initial Purchasers 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 you with respect to the financial statements and certain financial information contained in or incorporated by reference into the Final Offering Circular.
(j) The Debentures 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 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.
(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 or the Option 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 or the Option 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 or the Option Closing Date, prevent the issuance of the Debentures 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 Disclosure Package or the Offering Circular, or any amendment or supplement thereto, or which would be expected to have a Material Adverse Effect.
(o) 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.
(p) The Issuer shall have furnished to the Initial Purchaser and counsel to the Initial Purchasers)Purchaser with such other certificates, dated opinions or other documents as they may have reasonably requested and as are customary in the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of thetransactions 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 AWIN, the Company and the Guarantors contained in this Agreement shall be true and correct 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Allied and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its subsidiaries and (iii) neither the Company Allied 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of AWIN, the Company and the each of the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)9(b) and stating that AWIN, the Company and each of the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Latham & XxxxxxWatkins, counsel for AWIN, the Company and the Guarantors, in the form tx xxx effxxx xxx forth on Exhibit A attached hereto as and an opinion of Steven Helm, Vice President and General Counsel of the Company to the xxxxxx xxx forth on Exhibit B. B attached hereto. In providing such opinionaddition, such you shall have received opinions (satisfactory to you and counsel shall opine 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 federal laws states of New York and Delaware which are identified as Significant Subsidiaries (within the United States 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 laws of the State of New YorkGuarantors and shall so state therein.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxCravath, Nevada Swaine & Moore, counsel for the Initial Purchasers, in form and substance reasxxxxxy satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and counsel from Arthur Andersen LLP, independent public accountants, containing the ixxxxxxtxxx xxx statements of the type ordinarily included in accountants' "comfort letters" to the Initial PurchasersPurchasers 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 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, dated 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 the 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, at or prior to the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Series A Notes under this Agreement are Notes, as provided herein, shall be subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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. The Company shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(b) On or after The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers as promptly as practicable on the day following the date hereofof this Agreement or at such later date and time as to which the Initial Purchasers may agree, (iand no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) 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) issued and no proceeding 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 purpose shall not have occurred any change, nor shall notice have been given of any potential commenced or intended change, in the outlook for any rating of the Company shall be pending 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 marketedthreatened.
(c) 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 Notes; no action, suit or proceeding shall have been commenced and be pending or threatened against or affecting the Company before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected have a Material Adverse Effect on the Company.
(d) Since the respective dates as of which information is given in the Offering Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any change in the financial conditionmaterial adverse change, or the earningsany development that is reasonably likely to result in a material adverse change, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change in the capital stock or in the long-term debt debt, or increase in the short-term debt, of the Company from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company on any class of its subsidiaries capital stock, and (iii) neither the Company nor any of its subsidiaries shall not have incurred any liability liabilities or obligationobligations, direct or contingent, the effect of whichthat are material, in any such case described in clause 9(c)(i), 9(c)(ii) individually or 9(c)(iii), in the Initial Purchasers' reasonable judgmentaggregate, is material to the Company, and adverse and, that are required to be disclosed on a balance sheet or notes thereto in the Initial Purchasers' reasonable judgment, makes it impracticable to market the Series A Notes accordance with generally accepted accounting principles and are not disclosed on the terms and in the manner contemplated latest balance sheet or notes thereto included in the Offering Circular.
(d) The Initial Purchasers Memorandum. Since the date hereof and since the dates as of which information is given in the Offering Memorandum, there shall not have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)occurred any Material Adverse Effect.
(e) The Initial Purchasers shall have received on certificates, dated the Closing Date an opinion (Date, signed on behalf of the Company, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of Dechert Price & Xxxxxxthis Section 8 and that, counsel for as of the Closing Date, the obligations of the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New Yorkbe performed hereunder on or prior thereto have been duly performed.
(f) The Initial Purchasers shall have received on the Closing Date an opinion opinion, dated the Closing Date, (i) of Lathxx & Xatkxxx, xxunsel for the Company and (ii) of Alan Xxxxxxxx Xxxx, Xxquire, Vice President and General Counsel for the Company; each in form and substance satisfactory to the Initial Purchasers and counsel to for the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth covering such matters as are customarily covered in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevadaopinions.
(g) The Initial Purchasers shall have received on the Closing Date an opinion opinion, dated the Closing Date, of Halpxxx, Xxmple, Goodxxx xxx Mahex, xx form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(h) At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received from KPMG, independent public accountants, dated as of the date of this Agreement and as of the Closing Date, customary comfort letters addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers with respect to the financial statements and certain financial information of the Company contained in the Offering Memorandum and/or incorporated therein by reference.
(i) The Initial Purchasers)Purchasers shall have received an opinion, dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel in form and substance reasonably satisfactory to the Initial Purchasers, of Fried, Franx, Xxrrxx, Xxrixxx & Xacoxxxx, xxunsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(j) Friex, Xxanx, Xxrrxx, Xxrixxx & Xacoxxxx xxxll 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request.
(l) The Company and each the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(m) The Company shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(n) The Company shall have entered into the Pledge Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(o) The Company shall have given irrevocable instructions to purchase the Pledged Securities and deposit the Pledged Securities into the Pledge Account, and the Initial Purchasers shall have received the written opinion of thea firm of nationally recognized independent certified accountants, in form and substance satisfactory to the Initial Purchasers, to the effect that the Pledged Securities, upon receipt of scheduled interest and principal payments thereon, are sufficient to provide for the payment in full of the first two scheduled interest payments due on the Notes.
(p) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 463(g) under the Securities Act, that (i) it is downgrading its rating assigned to any class of securities of the Company or (ii) it is reviewing its rating assigned to any class of securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(q) The Notes shall have been approved for trading on PORTAL. All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company will be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Initial Purchasers. The Company shall furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request.
Appears in 1 contract
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 and the Guarantors contained in this Agreement and the other Operative Documents shall be true and correct on the date hereof and in all material respects, except where otherwise qualified, 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular Memorandum other than as set forth in contemplated by the Offering Circular (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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' your reasonable judgment, is material and adverse and, in the Initial Purchasers' your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by each of the President and the Chief Executive Financial Officer and the Treasurer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a), 9(b) and 9(c)) and stating that, to such Officer's reasonable knowledge and belief, the Company has complied with all agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to the effect that:
(i) the Company is a corporation duly incorporated, validly existing and in good standing under the laws of its states of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted;
(ii) the Company 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 authorized by all necessary corporate action on the part of the Company. The Note Documents have been duly and validly executed and delivered by the Company;
(iii) the issuance of the Series A Notes delivered on the Closing Date has been duly authorized by 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 terms of the Indenture and duly delivered against receipt of payment therefor in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, 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 (regardless of whether enforcement is sought in a proceeding at law or in equity);
(iv) 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 and the Registration Rights Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, 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 (regardless of whether enforcement is sought in a proceeding at law or in equity) and subject to the qualification that rights to indemnification and contribution under the Registration Rights Agreement may be limited by federal or state securities laws or public policy relating thereto;
(v) the issuance of the 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;
(ix) 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) granting any person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Series 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 A Notes in 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 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 caption "Description of Notes";
(xii) assuming that the representations and warranties of the Initial Purchaser contained in this Agreement are true, correct and complete and assuming compliance by the Initial Purchaser with its covenants contained in this Agreement, it is not necessary in connection with the offer, sale and delivery of the Series A Notes delivered on the Closing Date to the 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, as it relates to legal conclusions and matters of law, accurately describes the material United States federal income tax consequences of the acquisition, 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 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 Purchasers and counsel 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 Purchasers)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, dated 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 in this Section 9 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(m) Prior to the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as have furnished to the federal laws of Initial Purchaser such further information, certificates and documents as the United States and the laws of the State of New YorkInitial Purchaser may reasonably request.
(fn) The Initial Purchasers Company shall not have received on failed at or prior to the Closing Date an opinion (in form to perform or comply with any of the agreements herein contained and substance satisfactory required to be performed or complied with by the Initial Purchasers and counsel Company at or prior to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the
Appears in 1 contract
Samples: Purchase Agreement (Aki Inc)
Conditions of Initial Purchasers’ Obligations. The several --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Series A Notes under this Agreement are Firm Shares and the Additional Shares, as provided herein, shall be subject to the satisfaction of each of the following conditions, except that with respect to the Additional Shares, references to the Closing Date shall mean the Option Closing Date:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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. The Company shall have performed or complied in all material respects with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(b) On or after The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the day following the date hereofof this Agreement or at such later date and time as to which the Initial Purchasers may agree, (i) there shall not have occurred any downgrading, suspension and no stop order suspending the qualification 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 exemption from qualification of the Company or Shares in 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 directionjurisdiction referred to in Section 4(e) 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 notice have been given of any potential or intended change, in the outlook issued and no proceeding for any rating of the Company or any Guarantor by any such rating organization and (iii) no such rating organization that purpose shall have given notice that it has assigned (been commenced or is considering assigning) a lower rating to the Notes than that on which the Notes were marketedshall be pending or threatened.
(c) 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 Company Shares; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company, threatened against, the Company or the Subsidiaries before any court or arbitrator or any governmental body, agency or official that (1) could reasonably be expected to result in a Material Adverse Effect or (2) has not been disclosed in the Offering Memorandum; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(d) Since the respective dates as of which information is given in the Offering Circular other than Memorandum and except as set forth in contemplated by the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any change in the financial conditionmaterial adverse change, or the earningsany development that is reasonably likely to result in a material adverse change, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change in the capital stock or in the long-term debt debt, or material increase in the short-term debt, of the Company and the Subsidiaries from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any Subsidiary (other than any dividends or distributions paid to the Company) on any class of its subsidiaries capital stock, except for regular dividends paid in respect of the Series B Preferred Stock or Series D Preferred Stock and (iii) neither the Company nor any of its subsidiaries Subsidiary shall have incurred any liability liabilities or obligationobligations, direct or contingent, that are material, individually or in the effect aggregate, to the Company and the Subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet or notes thereto in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet or notes thereto included in the Offering Memorandum. Since the date hereof and since the dates as of whichwhich information is given in the Offering Memorandum, in there shall not have occurred any such case described in clause 9(c)(i)material adverse change, 9(c)(ii) or 9(c)(iii)any development which may reasonably be expected to involve a material adverse change, in the Initial Purchasers' reasonable judgmentproperties, is material and adverse andbusiness, in the Initial Purchasers' reasonable judgmentresults of operations, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
condition (d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Datefinancial or otherwise), signed by the Chief Executive Officer and the Treasurer affairs or prospects of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)Subsidiaries taken as a whole.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers)a certificate, dated the Closing Date, signed on behalf of Dechert Price & the Company by (i) Xxxxx X. Xxxxxx, counsel for Chairman of the Board, President and Chief Executive Officer and (ii) Xxxxxx X. Xxxxxxx, Senior Vice President and Chief Financial Officer, in form and substance reasonably satisfactory to the Initial Purchasers, confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8 and that, as of the Closing Date, the obligations of the Company and the Guarantors, to be performed hereunder on or prior thereto have been duly performed in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New Yorkall material respects.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx XxxxxxKronish, Nevada Lieb, counsel to for the Company and each of the GuarantorsCompany, substantially to the effect set forth in Exhibit C B hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.---------
(g) The Initial Purchasers shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), of Xxxxxx Xxxx & Xxxxxx LLP, special regulatory counsel to the Company, to the effect set forth in Exhibit C hereto. ---------
(h) The Initial Purchasers shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, of HolmeXxxxxx & Xxxxxxx, Xxxxxxx & Xxxx LLP, Colorado counsel to the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(i) At the time this Agreement is executed and at the Closing Date the Initial Purchasers shall have received from Ernst & Young LLP, independent public accountants for the Company, dated as of the date of this Agreement and as of the Closing Date, customary comfort letters addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers with respect to the financial statements and certain financial information of the Company contained in the Offering Memorandum.
(j) 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company and the Subsidiaries shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request.
(l) The Company shall have authorized, executed and filed the Certificate of Designation in accordance with Delaware law and each of thethe Initial Purchasers shall have received an original, duly executed by the Company.
(m) The Company shall have entered into each of the Registration Rights Agreement and the Deposit Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(n) The Company shall have deposited the Series E Preferred Stock with the Depositary.
(o) At or prior to the Closing Date, all FCC or state approvals required in connection with the Offering shall have been obtained or applications for such approvals submitted or prepared for submission promptly following the Closing Date and the Company shall have delivered to the Initial Purchasers evidence satisfactory to the Initial Purchasers that such FCC or state approvals have been obtained or applications thereof have been made or prepared for submission promptly following the Closing Date. All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchasers. The Company will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and other documents as it shall reasonably request.
Appears in 1 contract
Samples: Depositary Share Purchase Agreement (Intermedia Communications of Florida 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 Guarantors contained in this Agreement shall be true and correct on the date hereof and 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 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Issuers, the Guarantors, and its their respective subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of either Issuer, the Company Guarantors or any of its their respective subsidiaries and (iii) neither none of the Company nor Issuers, the Guarantors or any of its 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes Initial Securities on the terms and in the manner contemplated in the Offering Circular.Memorandum;
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company Issuers and each of the Guarantors, confirming the matters set forth in Sections 6(ff), 9(a) and 9(c).9(b) and stating that each of the Issuers and the Guarantors has complied in all material respects with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date;
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & XxxxxxGreexxxxx Xxxurig, P.A., counsel for the Company Issuers and the Guarantors, to the effect that;
(i) each of the 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;
(ii) each of the 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, except where the failure to be so qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of RailAmerica have been duly authorized and validly issued and are fully paid and nonassessable 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, all outstanding shares of capital stock of the Company are owned, indirectly, by RailAmerica. RailAmerica has the authorized 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 attached hereto as Exhibit B. In providing such opinioncontemplated by the Warrant Agreement and, such counsel shall opine as to the federal laws of the United States when issued, authenticated and the laws of the State of New York.
(f) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to delivered by RailAmerica against payment by the Initial Purchasers in accordance with the terms of this Agreement and counsel the Warrant Agreement, will constitute valid and legally binding obligations of RailAmerica, entitled to the benefits of the Warrant Agreement and enforceable against RailAmerica in accordance with their terms, 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 (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 preemptive 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)Purchasers in accordance with the terms of this Agreement, dated will be entitled to the Closing Datebenefits 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 Xxxxxxx Xxxxxxacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Guarantees have been duly authorized and, Nevada counsel 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 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;
(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 Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to 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 theacceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(ix) the Warrant 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 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;
(xiv) the statements under the captions "Description of the Units," "Description of the Notes," "Description of the Warrants," "Description of Capital Stock," "Plan of Distribution" and "Business - Regulation" 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:
(a) All the representations and warranties of the Company and the Guarantors Holding Company contained in this Agreement shall be true and correct on the date hereof and 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 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 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 any Guarantor the Holding Company or any securities of the Company or any Guarantor 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 Guarantor 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 Circular Memorandum, other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiariesthe Holding Company, taken as a whole, and (ii) there shall not have been any change or any development 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 the judgment of the Initial Purchasers' reasonable judgment, is may be material and adverse andor, in the judgment of 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)Memorandum.
(e) The Initial Purchasers No action shall have received on been taken (including the Closing Date an opinion (in form issuance of any stop order) and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers)no statute, dated rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York,
have a Material Adverse Effect.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxXxxx LLP, Nevada counsel to for the Company and each of the GuarantorsHolding Company, substantially to in the effect set forth in form of Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.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 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 Initial Purchasers.
(i) The Initial Purchasers shall have received, at the time this Agreement is executed and at the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from Coopers & Xxxxxxx LLP and counsel Xxxxxx Xxxxxxxx LLP, inde- pendent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(j) The Series A Notes shall have been approved by the NASD for trading and duly listed in PORTAL, dated provided that the Initial Purchasers shall have reasonably cooperated in obtaining such approval.
(k) The Company, the Holding Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received a counterpart, conformed as executed, thereof.
(l) The Company and the Holding Company 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 Holding Company.
(m) 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 required to be performed or complied with by the Company at or prior to the Closing Date.
(n) The Initial Purchasers shall have received an opinion from Xxxxxx, of HolmeXxxxxx & Co., Xxxxxxx & Xxxx LLP, Colorado counsel Inc. in form and substance reasonably satisfactory to the Initial Purchasers that the Offering and the application of the net proceeds therefrom will not render the Company and each of theor the Holding Company insolvent, leave the Company or the Holding Company with inadequate or unreasonably small capital or result in the Company or the Holding Company incurring indebtedness beyond its ability to repay as such indebtedness matures.
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 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 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 Guarantor 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 Circular Memorandum other than as set forth in the Offering Circular Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of thehave
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement hereunder are subject to the satisfaction accuracy, when made and again on the Closing Date (as if made again on and as of each such date), of the following conditions:
(a) All the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the Guarantors following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Offering Documents or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Lathxx & Xatkxxx, xxunsel for the Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) All of 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 date hereof and on the Closing Date, respectively.
(b) On . The Company shall have performed 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 complied in all material respects with all of the possible change in, any rating of the Company agreements herein contained and required to be performed or any Guarantor complied with by it at 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 notice have been given of any potential or intended change, in the outlook for any rating 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 prior to the Notes than that on which the Notes were marketedClosing Date.
(c) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the next Business Day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(d) Except as described in the Offering Memorandum, 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, have a Material Adverse Effect; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company, threatened against, the Company or any of its Subsidiaries 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 by the Commission or any governmental agency of any jurisdiction referred to in Section 5(g) preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(e) Since the respective dates as of which information is given in the Offering Circular Memorandum and other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any Material Adverse Change, or any development that is reasonably likely to result in a Material Adverse Change, or any material change in the financial conditionlong-term debt, or material increase in the earningsshort-term debt, businessfrom that set forth in the Offering Memorandum; (ii) except as disclosed in the Offering Memorandum, management no dividend or operations distribution of any kind shall have been declared, paid or made by the Company on any class of its capital stock; (iii) the Company and its subsidiariesSubsidiaries shall not have incurred any liabilities or obligations, direct or contingent, that are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, and (ii) there shall not have been any change that are required to be disclosed on a balance sheet or notes thereto 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in 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 Circular.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theaccordance with
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 the Option Closing Date 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 materiality shall be true and correct on the date hereof 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 date hereof and on the Closing Date or Option Closing Date, respectivelyas 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 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 change, in the outlook for any rating of the Company or any Guarantor 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 Circular other than as set forth in the Offering Circular 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 involving a prospective material adverse change, in the financial 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 subsidiariesSubsidiaries, taken as a whole, (y) and (ii) there shall not have been any change change, or any development involving a 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 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 the Initial Purchasers' reasonable judgment, which is material to the Company and adverse andits Subsidiaries, in the Initial Purchasers' 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 CircularMemorandum or incurred in the ordinary course of business.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, and on each Option Closing Date, if any, dated such Option Closing Date, signed by the Chief Executive Officer and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a), 9(b) and 9(c)) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) The Initial Purchasers shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (in form and substance 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 Dechert Price Xxxxxxx & XxxxxxXxXxxxxx, counsel for the Company, to the effect that:
(i) 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 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, subject to certain exceptions customarily taken in connection with enforceability opinions given under California law;
(ii) the Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the GuarantorsCompany, enforceable against the Company in accordance with its terms, subject to certain exceptions customarily taken in connection with enforceability opinions given under California law;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) 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, subject to (x) certain exceptions customarily taken in connection with enforceability opinions given under California law and (y) public policy or laws limiting rights of indemnity and contribution;
(v) the statements under the captions "Description of Notes," "Description of Capital Stock," "Description of Indebtedness" and "Certain U.S. Federal Income Tax Consequences" in the form attached hereto Offering Memorandum, insofar as Exhibit B. In providing such statements constitute a summary of legal matters or provisions of documents referred to therein, 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 conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable 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 opine 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 federal laws statements of officers and other representatives of the United States 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 New YorkCalifornia 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 (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 and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (in form and substance satisfactory to the Initial Purchasers and counsel to for the Initial Purchasers), dated the Closing Date or Option Closing Date, as the case may be, of HolmeXxxxx X. Xxxxxxxx, Xxxxxxx & Xxxx LLPGeneral Counsel of the Company, Colorado counsel 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 thethe 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 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 Riviera Holdings contained in this Agreement shall be true and correct 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiariesCompany, taken as a whole, and (ii) there shall not have been any change or any development 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 the Initial Purchasers' your reasonable judgment, is material and adverse and, in the Initial Purchasers' your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
(d) The Initial Purchasers You shall have received on the Closing Date (A) a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company (i) stating that the representations and warranties of the Guarantors, 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 9(aclause 10(b) and 9(c).10(c) hereof and (iii) stating that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date and (B) a certificate dated the Closing Date, signed by the President and the Chief Financial Officer of Riviera Holdings (i) stating that the representations and warranties of Riviera Holdings 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 clause 10(b) and 10(c) hereof and (iii) stating that Riviera Holdings has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the GuarantorsCompany, in substantially the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Allied and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its subsidiaries and (iii) neither the Company Allied 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Latham & XxxxxxWatkins, counsel for the Company and the Guarantors, in to the form xxxxxx sex xxxxx on Exhibit A attached hereto as and an opinion of Steven Helm, Vice President and General Counsel of the Company to the xxxxxx xxx forth on Exhibit B. B attached hereto. In providing such opinionaddition, such you shall have received opinions (satisfactory to you and counsel shall opine 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 federal laws 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 United States Company and the laws of the State of New YorkGuarantors and shall so state therein.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxCravath, Nevada Swaine & Moore, counsel for the Initial Purchasers, in form and substance reasxxxxxy satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers from Arthur Andersen LLP, indxxxxxxnx xxxxxx accountants, containing the information and counsel statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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, dated conformed as executed, of the Indenture, including all supplements thereto relating to the Series A Notes, which 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 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 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 HolmeJuly 21, Xxxxxxx & Xxxx LLP1999, Colorado counsel as amended on January 25, 2001, among the Company, Allied, the lenders party thereto, The Chase Manhattan Bank, as administrative agent and the collateral trustee (as so amended, the "Credit Agreement") to (i) permit the Company and each of thethe Guarantors to incur the debt under the Notes and the Guarantees and to secure the Notes and Guarantees with the Collateral and (ii) change certain financial covenants (the "AMENDMENT").
Appears in 1 contract
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 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 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 notice have been given of any potential or intended change, in the outlook for any rating 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 Circular Memorandum, other than as set forth in or contemplated by the Offering Circular Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there shall not have occurred any material adverse change in the condition, financial conditionor otherwise, or the earnings, business, management management, prospects (viewed as of the Closing Date) or operations of the Company Issuers and its their subsidiaries, taken as a whole, and (ii) there shall not have been any 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 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Senior Subordinated Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer Presidents and the Treasurer Chief Financial Officers of the Company and the GuarantorsIssuers, confirming the matters set forth in Sections 9(a), 9(b) and 9(c)) and stating that each of the Issuers and the Subsidiary Guarantors has complied with all agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Xxxx, Weiss, Rifkind, Xxxxxxx & XxxxxxXxxxxxxx, special U.S. counsel for the Company Issuers and the Subsidiary Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws effect that:
(i) (1) each of the United States 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 incorporated or organized, is validly existing as a corporation or limited liability company (as the case may be), is in good standing under the laws of the State of Delaware and has the corporate power or limited liability company power (as the case may be) to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties;
(ii) each of the Issuers and the New YorkSubsidiaries and the Existing Subsidiaries is duly qualified and in good standing as a foreign limited liability company or corporation, as applicable, authorized to do business in each jurisdiction listed opposite its name on Schedule I hereto;
(iii) the Issuers have duly authorized the Senior Subordinated Notes and, when 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 Issuers, enforceable in accordance with their 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;
(iv) each of the New Subsidiaries has duly authorized the Subsidiary Guarantee to 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 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;
(v) the Issuers have duly authorized 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 New Senior Subordinated Notes will be the legally valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with their 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;
(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 statements under the captions "Description of Notes", `Transactions", "Business--Environmental Matters", "Business--Legal Proceedings", "Certain Relationships and Related Transactions" and "Description of Certain Indebtedness" 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.
(fxiii) The Initial Purchasers shall have received on to such counsel's knowledge, neither the Closing Date an opinion Issuers nor any of the New Subsidiaries (i) are in form and substance satisfactory 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 Initial Purchasers Issuers or the New Subsidiaries, taken as a whole, and counsel would be required to the Initial Purchasers), dated the Closing Date, be filed as an exhibit to a registration statement of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each on Form S-1 covering this offering of the GuarantorsSenior Subordinated Notes;
(xiv) except as described in the Offering Memorandum, substantially to the effect set forth in Exhibit C hereto. In providing such opinionexecution, such counsel shall opine as to delivery and performance of this Agreement and the laws 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 Nevada.
Delaware (gthe "DLLC Act") The Initial Purchasers shall have received on or the Closing Date an opinion Delaware General Corporation Law (in form and substance satisfactory to together with the Initial Purchasers and counsel to DLLC Act, the Initial Purchasers"Delaware Laws") (except such as may be required under the securities or Blue Sky laws of the various states), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the,
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase and pay for the Series A Notes under this Agreement Initial Notes, as provided herein, are subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct 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. The Company shall have performed or complied with all agreements contained herein and required to be performed or complied with by it on or prior to the Closing Date.
(b) On or after The Offering Memorandum shall have been printed and copies distributed to the Initial Purchaser not later than 10:00 a.m., New York City time, on the day following the date hereofof this Agreement or at such later date and time as to which the Initial Purchaser may agree, (iand no stop order suspending the qualification or exemption from qualification of the Initial Notes thereof in any jurisdiction referred to in Section 4(e) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any potential or intended downgradinggovernmental agency that would, 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 as of the possible change inClosing Date, any rating prevent the issuance of the Initial Notes; no action, suit, investigation or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company, threatened against, the Company or any Guarantor of its subsidiaries before any court or arbitrator or any securities governmental body, agency or authority or administrative agency 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 Company Offering Memorandum, or any Guarantor (includingamendment or supplement thereto, 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 that could reasonably be expected to have occurred any change, nor shall notice have been given of any potential or intended change, in the outlook for any rating 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 marketedMaterial Adverse Effect.
(cd) Since the respective dates as of which information is given in the Offering Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement)Memorandum, (i) there shall not have occurred been any change in the financial conditionmaterial adverse change, or the earningsany development that is reasonably likely to result in a material adverse change, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change in the capital stock or in the long-term debt debt, or material increase in the short-term debt, of the Company or any of its subsidiaries from that set forth in the Offering Memorandum, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of its subsidiaries on any class of its capital stock and (iii) neither the Company nor any of its subsidiaries shall have incurred any liability liabilities or obligationobligations, direct or contingent, the effect of whichthat are material, in any such case described in clause 9(c)(i), 9(c)(ii) individually or 9(c)(iii), in the Initial Purchasers' reasonable judgmentaggregate, is material to the Company and adverse andits subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet or notes. thereto in the Initial Purchasers' reasonable judgment, makes it impracticable to market the Series A Notes accordance with generally accepted accounting principles and are not disclosed on the terms and in the manner contemplated latest balance sheet or notes thereto included in the Offering Circular.
(d) The Initial Purchasers shall have received on Memorandum, nor entered into any transaction not in the Closing Date ordinary course of business. Since the date hereof and since the dates as of which information is given in the Offering Memorandum, there has not occurred any change, or any development that is reasonably likely to result in a certificate dated the Closing Date, signed by the Chief Executive Officer and the Treasurer of the Company and the Guarantors, confirming the matters set forth in Sections 9(a) and 9(c)Material Adverse Effect.
(e) The Initial Purchasers Purchaser shall have received certificates, dated the Closing Date, signed on behalf of the Company, in form and substance satisfactory to the Initial Purchaser, confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8 and clause (xliv) of Section 5(a) and that, as of the Closing Date, the Company has satisfied all conditions on its part to be satisfied hereunder on or prior thereto.
(f) The Initial Purchaser shall have received on the Closing Date an opinion (opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers Purchaser and counsel for the Initial Purchasers)Purchaser, dated of Xxxxxxxx & Xxxxx LLP, counsel for the Company, to the effect set forth in Exhibit A hereto.
(g) At the time this Agreement is executed and at the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) The Initial Purchasers Purchaser shall have received on from PricewaterhouseCoopers LLP, independent public accountants for the Company, dated as of the date of this Agreement and as of the Closing Date an opinion (Date, customary “comfort” letters addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchasers Purchaser and counsel for the Initial Purchaser with respect to the financial statements and certain financial information of the Company and its subsidiaries contained in the Offering Memorandum.
(h) The Initial Purchasers)Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and Purchaser, of Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, covering such matters as are customarily covered in such opinions.
(i) Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers)Purchaser, dated 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel the Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request.
(k) The Company and each the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof.
(l) The Company and the Initial Purchaser shall have entered into the Registration Rights Agreement and the Initial Purchaser shall have received counterparts, conformed as executed, thereof.
(m) The Company shall have obtained the Bank Consent as described in the Offering Memorandum and as may be reasonably satisfactory to the Initial Purchaser.
(n) The Notes shall have been approved for trading on PORTAL.
(o) The Company shall use the net proceeds from the sale of thethe Initial Notes in the manner described in the Offering Memorandum under the caption “Use of Proceeds.”
(p) All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchaser. The Company shall furnish the Initial Purchaser with such conformed copies of such opinions, certificates, letters and other documents as it shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Innophos, 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 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 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 Circular other than as set forth in the Offering 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Allied and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company Allied or any of its subsidiaries and (iii) neither the Company Allied 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and each of the Guarantors, confirming the matters set forth in Sections 6(y), 9(a) and 9(c)9(b) and stating that each of the Company and the Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Fried, Frank, Harris, Shriver & XxxxxxJacobson, counsel for the Company and the GuarantorsGuxxxxxxxx, in the form xx thx xxxxxt sxx xxxxx on Exhibit A attached hereto as and an opinion of Steven Helm, Vice President and General Counsel of the Company to the xxxxxx xxx forth on Exhibit B. B attached hereto. In providing such opinionaddition, such you shall have received opinions (satisfactory to you and counsel shall opine 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 federal laws 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 United States Company and the laws of the State of New YorkGuarantors and shall so state therein.
(f) 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)opinion, dated the Closing Date, of Xxxxxxx XxxxxxLatham & Watkins, Nevada counsel for the Initial Purchasers, in form and subxxxxxx rexxxxxxxy satisfactory to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of NevadaInitial Purchasers.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and counsel from Arthur Andersen LLP, independent public accountants, containing the ixxxxxxtxxx xxx statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchasers)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, dated conformed as executed, of the Indenture, including all supplements thereto relating to the Series A Notes, which 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 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 the Guarantors, as the case may be, at or prior to the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to .
(m) The Company shall have amended the Credit Facility to: (i) permit the Company and each the Guarantors to incur the debt under the Notes and the Guarantees and to secure the Notes and Guarantees with the Collateral; (ii) change certain financial covenants; and (iii) provide for the reduction of thethe 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 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 on the date hereof and Closing Date, in the case of Initial Notes, or on the Option Closing Date Date, in the case of Additional Notes, in each case with the same force and effect as if made on and as of the date hereof and on the Closing Date, respectivelysuch 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective 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 the Initial Purchasers' your reasonable judgment, is material and adverse and, in the Initial Purchasers' your reasonable judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) The Initial Purchasers You shall have received on the Closing Date 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 Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company and the GuarantorsCompany, confirming the matters set forth in Sections 9(a) and 9(c)9(b) and stating that 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 or the Option Closing Date, as the case may be.
(e) The Initial Purchasers 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 (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Dateas of such date, of Dechert Price Willkie Farr & XxxxxxGallagher, counxxx xxx xxx Comxxxx, 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;
(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, 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 Significant 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) this Agreement has been duly authorized, executed and delivered by the 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 Agreement 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;
(viii) the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming the due authorization, valid execution and delivery by each of the Initial Purchasers, 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;
(ix) the shares of Common Stock initially issuable upon conversion of the Notes in accordance with the Indenture have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued by the Company, fully paid and nonassessable; and the stockholders of the Company have no preemptive rights under the Company's certificate of incorporation with respect to the Notes or the shares of Common Stock issuable upon conversion of the Notes;
(x) the statements under the captions "Description of Credit Facility" and "Description of Notes" 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 GuarantorsInitial 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 form attached hereto as Exhibit B. In providing circumstances under which they were made, not misleading (it being understood that in each such opinion, case such counsel shall opine as expresses no belief or opinion with respect to the federal laws 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 United States Company and the laws of the State of New Yorkshall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date Date, in the case of Initial Notes, or on the Option Closing Date, in the case of Additional Notes, an opinion (opinion, dated as of such date, of Latham & Watkins, counsel for xxx Xxitixx Xxxxhasers, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on received, at the time this Agreement is executed and at the Closing Date an opinion (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 counsel 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), dated .
(l) The Company shall not have failed at or prior to the Closing Date, in the case of HolmeInitial Notes, Xxxxxxx & Xxxx LLP, Colorado counsel 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 and each of theat 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 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 and the Guarantors 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 on in all material 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 date hereof 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, 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 Issuer or any Guarantor of its Subsidiaries or any of its or their respective 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 notice have been given of any potential or intended change, in the outlook for any rating of the Company Issuer or any Guarantor of 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 Circular other than as set forth disclosed in the Final Offering 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 involving a prospective change in the properties, condition (financial conditionor otherwise), or the earnings, business, management or operations of the Company and Issuer or any of its subsidiariesSubsidiaries, taken as a whole, and (ii) there shall not have been any change or any development 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 Subsidiaries and (iii) neither the Company Issuer 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 the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, is material and adverse and, in the reasonable judgment of the Initial Purchasers' reasonable judgmentPurchaser, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Final Offering Circular.
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, Date signed by the Chief Chairman, the President or the Executive Officer Vice President and the Treasurer Chief Financial Officer of the Company Issuer
(i) stating that the representations and warranties of the GuarantorsIssuer 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 9(aclauses 9(b) and 9(c)) hereof;
(iii) stating that the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(iv) stating that they have carefully examined the Final Offering Circular and, in their opinion, since the date of the Final Offering Circular no event has occurred which should, under applicable securities laws, have been set forth in a supplement or amendment to the Final Offering Circular.
(e) The Initial Purchasers 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 (in form subject to customary qualifications, limitations and substance exceptions and reasonably satisfactory to the Initial Purchasers you and counsel for the Initial PurchasersPurchaser), dated the Closing Date, Date of Dechert Price MxXxxxxxx Will & XxxxxxExxxx LLP, counsel for the Company and the GuarantorsIssuer, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as substantially to the federal laws of the United States and the laws of the State of New Yorkeffect set forth in Exhibit B attached hereto.
(fg) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to you and counsel for the Initial Purchasers and counsel to the Initial PurchasersPurchaser), dated the Closing DateDate of Kasowitz, of Xxxxxxx XxxxxxBenson, Nevada Txxxxx & Fxxxxxxx LLP, special litigation counsel to for the Company and each of the GuarantorsIssuer, substantially to the effect set forth that the statements under the captions “Business—Lxxxxxx Group, Inc.—Legislation, Regulation and Litigation” and “Offering Circular Summary—Recent Developments—Litigation” in Exhibit C hereto. In providing the Final Offering Circular, insofar as such opinion, such counsel shall opine as to the laws statements constitute a summary of the State 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 and do not contain any untrue statement of Nevadaa 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.
(gh) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers)opinion, dated the Closing Date, of Holme, Xxxxxxx Lxxxxx & Xxxx Wxxxxxx LLP, Colorado 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 Company Initial Purchaser with such other certificates, opinions or other documents as they may have reasonably requested and each of theas are customary in the transactions contemplated by this Agreement.
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 on the date hereof and in all material respects on the Closing Date with the same force and effect as if made on and as of the date hereof Closing Date, provided that the representations and warranties qualified by "materiality" shall be true and correct 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 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 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 Circular Memorandum other than as set forth in the Offering Circular 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 involving a prospective change in the condition, financial conditionor otherwise, or the earnings, business, management or operations of the Company Partnership and its subsidiariessubsidiaries and Leviathan Finance, taken as a whole, and (ii) there shall not have been any change or any development 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 their subsidiaries and (iii) neither the Company Issuers nor any of its 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 the Initial Purchasers' reasonable your judgment, is material and adverse and, in the Initial Purchasers' reasonable your judgment, makes it impracticable to market the Series A Notes on the terms and in the manner contemplated in the Offering Circular.Memorandum;
(d) The Initial Purchasers You shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer President and the Treasurer Chief Financial Officer of the Company General Partner and Leviathan Finance and each of the Subsidiary Guarantors, confirming the matters set forth in Sections 6(cc), 9(a) and 9(c).9(b) and stating that each of the Issuers and the Subsidiary Guarantors has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date;
(e) The Initial Purchasers You shall have received on the Closing Date an opinion (in form and substance satisfactory to the Initial Purchasers you and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price Akin, Gump, Strauss, Hauex & XxxxxxXeld, X.L.P., counsel for the Company Issuers and the Subsidiary Guarantors, to the effect that:
(i) each of the 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 form attached hereto as Exhibit B. In providing such opinionOffering Memorandum and to own, such counsel shall opine as to the federal laws lease and operate its properties;
(ii) each of the United States 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 New York.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 such jurisdictions, which are the only jurisdictions in which the business of the General Partner or its 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;
(fiv) the General partner is, and after giving effect to the transactions (the "TRANSACTIONS") in the Offering Memorandum which are described under the caption "The Initial Purchasers shall Transactions," the General Partner is the sole general partner of the Partnership with a 1.0% general partner interest in the Partnership;
(v) the Series A Notes have received on been duly authorized by each of the Closing Date an opinion (Issuers and, when executed and authenticated in form accordance with the provisions of the Indenture and substance satisfactory delivered to and paid for by the Initial Purchasers and counsel 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 Issuers, enforceable in accordance with their terms except as may be limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors' rights 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 (v) the limitations imposed by rights to indemnification and contribution thereunder may be limited by Federal 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 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)Purchasers in accordance with the terms of this Agreement, dated the Closing Date, of Xxxxxxx Xxxxxx, Nevada counsel Guarantees endorsed thereon will be entitled to the Company benefits of the Indenture and will be valid and binding obligations of the Subsidiary Guarantors, enforceable in accordance with their terms except as may be limited by the General Exceptions;
(vii) the Indenture has been duly authorized, executed and delivered by each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the laws Issuers and each Subsidiary Guarantor and is a valid and binding agreement of each of the State of Nevada.
(g) 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 Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company Issuers and each Subsidiary Guarantor, enforceable against each of thethe Issuers and each Subsidiary Guarantor in accordance with its terms except as may be limited by the General Exceptions;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The obligations --------------------------------------------- of the Initial Purchasers to purchase and pay for the Series A Notes under this Agreement are Restricted Notes, as provided herein, shall be subject to the satisfaction of each of the following conditions:
(a) All At the Closing Date, the Initial Purchasers shall have received a certificate of the Company, executed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, and a certificate of each Guarantor, executed by two authorized officers of such Guarantor, dated the date of its delivery, to the effect that as of the date of such certificate the representations and warranties of the Company and or the Guarantors contained Guarantor, as applicable, set forth in this Agreement shall be Section 5 hereof are true and correct in all material respects as of such Closing Date, the obligations of the Company or the Guarantor, as applicable, to be performed hereunder on or prior thereto have been duly performed in all material respects, and subsequent to the respective dates of which information is given in the Offering Memorandum, the Company or Guarantor, as applicable, and its subsidiaries have not sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any material adverse change, or any development involving a material adverse change, in the business prospects, properties, operations, condition (financial or otherwise), or results of operations of the Company and its subsidiaries taken as a whole, except in which case as described in or contemplated by the Offering Memorandum.
(b) At the Closing Date, the Initial Purchasers shall have received (i) the written opinion of Xxxxxx Xxxxxx, Esq., Assistant General Counsel to the Company, dated the Closing Date, addressed to the Initial Purchasers, and in form and substance reasonably acceptable to the Initial Purchasers' Counsel, to the effect set forth in Exhibit 1, (ii) the written opinion of Xxxxxx Xxxxxx & Xxxxxxx, --------- special counsel for the Company, dated the Closing Date, addressed to the Initial Purchasers, and in form and substance reasonably satisfactory to Initial Purchasers' Counsel, to the effect set forth in Exhibit 2 and (iii) the written opinion of Xxxxxx & Xxxxxx, special --------- counsel for the Company, dated the Closing Date, addressed to the Initial Purchasers, and in the form and substance reasonably satisfactory to Initial Purchasers' Counsel, to the effect set forth in Exhibit 3. ---------
(c) At the Closing Date, the Initial Purchasers shall have received the written opinion of Xxxxxxx & Xxxxxx, P.C., special counsel for the Initial Purchasers, dated the Closing Date, addressed to the Initial Purchasers, and in form and substance reasonably satisfactory to Initial Purchasers' Counsel, to the effect set forth in Exhibit 4. ---------
(d) At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received from Xxxxxx Xxxxxxxx LLP, independent public accountants, dated as of the date hereof and on the Closing Date with the same force and effect as if made on of this Agreement and as of the date hereof Closing Date, customary comfort letters addressed to the Initial Purchasers and on in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers with respect to the financial statements and certain financial information of the Company and its subsidiaries contained in the Offering Memorandum and/or incorporated therein by reference.
(e) The Initial Purchasers shall have received an opinion, dated the Closing Date, respectivelyin form and substance reasonably satisfactory to the Initial Purchasers, of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(bf) Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP 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 in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(g) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request.
(h) The Company, the Guarantors and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(i) The Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(j) 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.
(ck) Since the respective dates as of which information is given in the Offering Circular other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there The Notes shall not have occurred any change in the financial condition, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, and (ii) there shall not have been any 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 the Initial Purchasers' reasonable judgment, is material and adverse and, in the Initial Purchasers' reasonable judgment, makes it impracticable to market the Series A Notes approved for trading on the terms and in the manner contemplated in the Offering CircularPORTAL.
(dl) The Initial Purchasers shall have received on the Closing Date a certificate dated the Closing DateAll opinions, signed certificates, letters and other documents required by the Chief Executive Officer and the Treasurer of this Section 8 to be delivered by the Company and the Guarantors, confirming Guarantors will be in compliance with the matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (provisions hereof only if they are reasonably satisfactory in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form attached hereto as Exhibit B. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
(f) 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 . The Company and each of the Guarantors, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel Guarantors shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the Closing Date an opinion (in form and substance satisfactory to furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and counsel to the Initial Purchasers), dated the Closing Date, of Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of theother documents as it shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Village at Breckenridge Acquisition Corp Inc)
