Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase: (i) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. (ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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. (iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8. (vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. (vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers. (viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. (ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof. (x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof. (xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers. (xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed. (xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect. (xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request. (xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement. (xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance. (xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Samples: Purchase Agreement (Us Oncology Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations obligation of the each Initial Purchasers Purchaser to purchase and pay for the Original Notes, as provided for in this Agreement, shall be Securities that it has severally agreed to purchase hereunder is subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy of the representations and warranties of the Issuers Company contained herein and in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date certificates of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) officer of the Company and the Subsidiaries thatSubsidiary delivered pursuant to the provisions hereof, either individually or in to the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made performance by the Company on any class of its capital stock.obligations hereunder, and to the following further conditions:
(va) The Initial Purchasers shall have received certificates, dated At the Closing DateTime, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and signed opinion of Eckexx Xxxmxxx Xxxxxx Xxxxxxxx LLP& Mellxxx, independent public accountants XXC, counsel for the Company, dated as of the Closing Time, in substantially the form attached hereto as Exhibit B-1. Such opinion shall be to such further effect with respect to other legal matters relating to this Agreement and the sale of the Securities pursuant to this Agreement as counsel for the Initial Purchasers may reasonably request.
(b) At the Closing Time, each of the Initial Purchasers shall have received a signed opinion of Wiley, Rein & Fielding, FCC counsel to the Company, dated as of the Closing Time, in substantially the form attached hereto as Exhibit B-2. Such opinion shall be to such further effect with respect to other legal matters relating to this Agreement and the sale of the Securities pursuant to this Agreement as counsel for the Initial Purchasers may reasonably request.
(c) At the Closing Time, each of the Initial Purchasers shall have received a signed opinion of Lionxx Xxxxxx & Xollxxx, Nevada counsel for the Company, dated as of the Closing Time, in substantially the form attached hereto as Exhibit B-3. Such opinion shall be to such further effect with respect to other legal matters relating to this Agreement and the sale of the Securities pursuant to this Agreement as counsel for the Initial Purchasers may reasonably request.
(d) At the Closing Time, each of the Initial Purchasers shall have received the favorable opinion of Sheaxxxx & Xterling, counsel for the Initial Purchasers, dated as of the Closing Time, to the effect that the opinions delivered pursuant to Sections 5(a), 5(b) and 5(c) appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by the Initial Purchasers, and with respect to the incorporation and legal existence of the Company, the Securities, this Agreement, the Indenture, the Registration Rights Agreement, the Offering Memorandum and such other related matters as the Initial Purchasers may require.
(e) At the time that this Agreement is executed by the Company and at the Closing Date, each of the Initial Purchasers shall have received from KPMG, independent auditors for the Company, a letter, dated respectively as of the date of this AgreementAgreement and as of the Closing Time, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel Purchasers, confirming that they are independent public accountants with respect to the Initial Purchasers. In addition, Company within the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as meaning of the Closing Date1933 Act and the applicable published rules and regulations thereunder, addressed to the Initial Purchasers and setting forth certain matters customarily included in accountants' "comfort letters," in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xiif) The Company shall have notified furnished to the lenders under Initial Purchasers a certificate, signed by the Chief Executive Officer and the principal financial officer of the Company's credit agreement , dated as of December 30the Closing Time, 1997to the effect that the signers of such certificate have examined the Offering Memorandum, as amended any amendment or supplement to the Offering Memorandum, and this Agreement and that:
(as in effect on i) the date hereof), representations and warranties of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement are true and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction correct in all material respects of any on and as of the representationsClosing Time with the same effect as if made at the Closing Time, warranties the Offering Memorandum, as it may then be amended or conditions contained in this Agreement.
(xviii) The Original Notes shall supplemented, does not contain an untrue statement of a material fact or omit to state a material fact required to be eligible for trading in stated therein or necessary to make the Portal market upon issuance.
(xix) All statements therein not misleading, and the Company has complied with all the agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of and satisfied all the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by under this Agreement on its part to be fulfilled (performed or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time satisfied at or prior to the Closing Date, and such termination shall be without liability Time; and
(ii) since the respective dates as of which information is given in the Offering Memorandum (exclusive of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(famendments or supplements thereto), 6neither the Company nor the Subsidiary has sustained any material loss or interference with its respective business or properties from fire, 7flood, 9hurricane, 10 and 11(d) shall remain in effect.accident or other calamity, whether or not covered by insurance, or from any labor
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- respective obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy, at the Applicable Time and the Closing Date, of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correctherein, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on performance by the Closing Date, except that if a representation and warranty is made as Company of a specific dateits obligations hereunder, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all each of the agreements following additional terms and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Dateconditions.
(iia) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers you not later than 9:00 A.M., New York City time, on the day following the date of this Agreement May 24, 2006, or at such later date and time as the Initial Purchasers you may determine. No approve in writing, and no stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiib) No action Initial Purchaser shall have been taken discovered and no statutedisclosed to the Company on or prior to such Closing Date that the Pricing Disclosure Package or the Final Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, rulein the opinion of Weil, regulation Gotshal & Xxxxxx LLP, counsel for the Initial Purchasers, is material or order omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the other Operative Documents, the Credit Documents, the Pricing Disclosure Package, the Final Offering Memorandum, and all other legal matters relating to this Agreement and the Transactions shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have been enactedfurnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxx & Lardner LLP shall have furnished to the Initial Purchasers its written opinion, adopted or issued by any governmental agency that wouldas counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to its counsel, substantially in the Initial Purchasers.form attached hereto as Exhibit B.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to from Weil, Gotshal & Xxxxxx LLP, counsel for the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLPsuch opinion or opinions, dated as of the Closing Date, addressed with respect to the issuance and sale of the Notes and the Guarantees, the Pricing Disclosure Package, the Final Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and in form and substance satisfactory the Company shall have furnished to such counsel such documents as they reasonably request for the Initial Purchasers and counsel purpose of enabling them to the Initial Purchaserspass upon such matters.
(ixf) The sale and initial resale of the Series A Convertible Preferred Stock, shall have occurred pursuant to the Preferred Stock Purchase Agreement.
(g) Each of the Issuers Company, the Guarantors and the Trustee shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xih) Each of the Issuers Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xiii) The Company Notes shall have notified been approved for trading in PORTAL and shall be eligible for clearance and settlement through The Depository Trust Company.
(j) At the lenders Applicable Time, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP, a letter, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities 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 Company's credit agreement Commission, (ii) stating, as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Offering Memorandum, as of a date not more than three days prior to the Applicable Time), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers.
(k) With respect to the letter of PricewaterhouseCoopers, LLP, referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Initial Purchasers shall have received a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated as of December 30the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities 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 Commission, 1997(ii) stating, as amended (as in effect on of the date hereofof the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of the Company's intention to pay all obligations such firm with respect thereto with a portion of to the proceeds of the Original Notes financial information and simultaneously with the issuance of the Original Notes all such obligations shall be paid other matters covered by the Company initial letter and (iii) confirming in full. Upon such payment, such credit agreement shall be terminated all material respects the conclusions and findings set forth in accordance with the terms thereofinitial letter.
(xiiil) The Initial Purchasers shall have received on a copy of the Closing Date a certificate from the Company dated the Closing Date as to the solvency Credit Documents with all schedules, exhibits and amendments thereto, certified by an executive officer of the Company as a true, correct and complete copy as of the Subsidiaries, addressed to the Initial PurchasersClosing Date.
(xivm) The Initial Purchasers shall have received copies (i) a certificate from the Company, dated the Closing Date, signed by its Chairman of the Guarantees conformed Board or President and its Chief Financial Officer or Treasurer and (ii) a certificate from each Guarantor, dated as executed.of the Closing Date, signed by its Chairman of the Board or President stating, as applicable, that:
(xvA) All government authorizations required in connection with the issue The representations and sale warranties of the Notes as contemplated under this Agreement Company and the performance Guarantors, as applicable, are true and correct as if made on and as of the Company's obligations hereunder and under Closing Date (other than to the Indenture extent any such representation or warranty is made expressly to a certain date), and the Notes shall Company and the Guarantors, as applicable, have performed all covenants and agreements and satisfied all conditions on their part to be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxxperformed or satisfied hereunder, counsel to the Initial Purchasersextent a party thereto, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date;
(B) As of the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum, except as described in the Pricing Disclosure Package and the Final Offering Memorandum, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a material adverse effect on the consolidated financial position, shareholders’ equity, results of operation, business or prospects of the Company and its subsidiaries;
(C) They have carefully examined the Pricing Disclosure Package and the Final Offering Memorandum and, in their opinion the Pricing Disclosure Package and the Final Offering Memorandum, as of their respective dates, did not, and the Pricing Disclosure Package and the Final Offering Memorandum, as of the Closing Date, does not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Pricing Disclosure Package and the Final Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Pricing Disclosure Package and the Final Offering Memorandum; and
(D) The issuance and sale of the Notes and Guarantees by the Company and the Guarantors hereunder has not been enjoined (temporarily or permanently) by any court or governmental body or agency.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Final Offering Memorandum and (ii) since the Applicable Time there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Final Offering Memorandum, the effect of which, in any such termination case described in clause (i) or (ii), is, in the judgment of Xxxxxx Brothers and Citigroup, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes and the Guarantees being delivered on such Closing Date on the terms and in the manner contemplated herein and in the Pricing Disclosure Package and the Final Offering Memorandum.
(o) Subsequent to the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act and (ii) no such organization shall have publicly announced or privately informed the Company that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(p) Subsequent to the Applicable Time, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be without liability of any party to such) or there shall have occurred any other partycalamity or crisis, including without limitation as a result of terrorist activities after the date hereof, as to make it, in the judgment of Xxxxxx Brothers and Citigroup, impracticable or inadvisable to proceed with the public offering or delivery of the Notes and the Guarantees being delivered on such Closing Date on the terms and in the manner contemplated herein and in the Pricing Disclosure Package and the Final Offering Memorandum.
(q) The Initial Purchasers shall have received such other documents, agreements, certificates and information as they shall have reasonably requested. Notwithstanding any such terminationAll opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions of Sections 4(f), 6, 7, 9, 10 hereof only if they are in form and 11(d) shall remain in effectsubstance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers under this Agreement are several and not joint. The obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 10 of any misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Representative:
(ia) All of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on each Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on its part to be performed or performed, complied with by them or satisfied hereunder at or prior to the each Closing Date.
(iib) 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 of this Agreement or at such later date and time as to which the Initial Purchasers Representative may determine. agree.
(c) No stop order suspending the qualification or exemption from qualification of the Original Notes thereof in any jurisdiction referred to in Section 6(e) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) No action None of the issuance and sale of the Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by threatened against the Company or against any governmental agency that would, as of the Closing Date, prevent Initial Purchaser relating to the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no or the other Transaction Documents. No action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge best of the IssuersCompany’s knowledge, threatened against against, the Company and/or or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Free Writing Offering Document, the Offering Memorandum, or any amendment or supplement thereto.
(e) Since the respective dates as of which information is given in the Disclosure Package, (i) there shall not have occurred any change, or any order asserting that any of development involving a prospective change, in or affecting the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) otherwise), properties, prospects, results of operations, capital stock, or long-term debt, or a material increase in the short-term debt, of the Company or any of the Subsidiaries, not contemplated by the Disclosure Package and the Subsidiaries thatOffering Memorandum that is, either individually or in the aggregatejudgment of the Representative, would reasonably be expected so material and adverse as to have a Material Adverse Effect make it impracticable or inadvisable to proceed with the offering of the Notes on the terms and in the manner contemplated by the Transaction Documents, (cii) there has been no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of the Subsidiaries on any class of its capital stock, other than as disclosed in the Disclosure Package and the Offering Memorandum, (iii) none of the Company or any of the Subsidiaries shall have incurred any liability or obligation, direct or contingent, that is material, individually or in the aggregate, to the Company and the Subsidiaries, taken as a whole, and that is required to be disclosed on a balance sheet or notes thereto in accordance with U.S. GAAP and is not disclosed on the latest balance sheet or notes thereto included in the Disclosure Package and the Offering Memorandum and (iv) there shall not have occurred any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Disclosure Package or the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, require the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(vf) At each Closing Date and after giving effect to the consummation of the transactions contemplated by the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(g) The Initial Purchasers shall have received certificates, dated the each Closing Date, signed by two authorized officers of each the chief executive officer and the chief financial officer of the Company Company, in form and substance satisfactory to the Guarantors Representative, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 810 and that, as of such Closing Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed.
(vih) The Initial Purchasers shall have received on the Closing Date opinions Date:
(i) an opinion, dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Initial Purchasers, of Lxxxx Liddell & Sxxx LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(ii) an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers. In addition, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Initial Purchasers, relating to this Agreement and such other related matters as the Initial Purchasers may require.
(i) Deloitte & Touche LLP (the “Auditor”), the independent registered public accounting firm for the Company, shall have received deliver to the Initial Purchasers: (i) simultaneously with the execution of this Agreement a "bring-down comfort letter" signed letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, Auditor addressed to the Initial Purchasers and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative and Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained in the Preliminary Offering Memorandum, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Initial Purchasers and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative and Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel to for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiij) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the SubsidiariesSkadden, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx Arps, Slate, Mxxxxxx & XxxxxxxFxxx LLP, counsel to the Initial Purchasers, shall have been furnished with such documents information, certificates and documents, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(k) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company, and the Notes shall have been duly authenticated by the Trustee.
(l) On or after the date hereof (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization 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.
(m) The Notes shall have been approved for trading on The PORTALSM Market.
(n) Each of the Transaction Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviiio) The Original All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Transaction Documents and all documents and papers relating thereto shall be eligible for trading reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in the Portal market upon issuanceconnection therewith, all in form and substance reasonably satisfactory to them.
(xixp) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as opinions, certificates, letters, schedules, documents or instruments required by this Agreement Section 10 to be fulfilled (or waived delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representative and counsel to the Initial Purchasers), this Agreement may be terminated by . The Company shall furnish the Initial Purchasers on notice to such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Company at any time at Initial Purchasers shall reasonably request.
(q) On or prior to the Closing Date, the Initial Purchasers shall have received a lock up agreement substantially in the form attached hereto as Exhibit B signed by the Company’s Executive Officers and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectDirectors listed on Schedule V hereto.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy of the representations and warranties of the Issuers Company and the Guarantors contained herein at the Execution Time and the Closing Date or in this Agreement certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and other obligations hereunder, and to the following further conditions:
(a) Wxxxxx Lxxxxxx Xxxxxx & Dxxxx, LLP shall be true and correcthave furnished to the Representatives its written opinion, or true and correct in all material respects where such representations and warranties are not qualified by materiality letter or Material Adverse Effectletters, on the date of this Agreement and, in each case after giving effect as counsel to the transactions contemplated herebyCompany and the Guarantors, on addressed to the Representatives and dated the Closing Date, except substantially in the form of Exhibit B hereto.
(b) The Representatives shall have received from Weil, Gotshal & Mxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Supplemental Indenture, this Agreement, the Registration Rights Agreement, the Disclosure Package and the Final Offering Memorandum and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(c) At the time of the execution of this Agreement, the Representatives shall have received from:
(i) Ernst & Young LLP, a letter with respect to the financial information of the Company included or incorporated by reference in the Disclosure Package and the Final Offering Memorandum, in form and substance satisfactory to the Representatives, addressed to the Representatives and dated the date hereof (A) confirming that if a representation it is an independent registered public accounting firm within the meaning of the Act and warranty is made in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (B) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Disclosure Package and the Final Offering Memorandum, as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or not more than five days prior to the Closing Date.date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to Representatives in connection with a registered public offering; and
(ii) The Offering Memorandum shall have been printed and copies distributed PricewaterhouseCoopers LLP, two letters, one with respect to the Initial Purchasers on financial information of Horizon Health and the day following other with respect to the financial information of ABS, included or incorporated by reference in the Disclosure Package and the Final Offering Memorandum, each in form and substance satisfactory to the Representatives and Pricewaterhouse Coopers LLP, addressed to the Representatives and dated the date hereof (A) confirming that it is an independent registered public accounting firm within the meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (B) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Disclosure Package and the Final Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to Representatives in connection with a registered public offering.
(d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement or at such later date as (each, an “initial letter”), the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction Representatives shall have been issued received a letter (each, a “bring-down letter”) addressed to the Representatives and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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, dated as of the Closing Date:
(i) Ernst & Young LLP, prevent with respect to the issuance financial information of the Original Notes Company, included or consummation of the Exchange Offer; except as disclosed incorporated by reference in the Disclosure Package and the Final Offering Memorandum, no action(A) confirming that it is an independent registered public accounting firm within the meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, suit or proceeding shall have been commenced and be pending against or affecting (B) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the knowledge respective dates as of which specified financial information is given or incorporated by reference in the Issuers, threatened against Disclosure Package and the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Final Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any as of a date not more than five days prior to the date of the transactions contemplated by this Agreement are subject bring-down letter), the conclusions and findings of such firm with respect to the registration requirements of financial information and other matters covered by the Act shall have been issued.
initial letter and (ivC) As of September 30, 2001, neither confirming in all material respects the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not conclusions and findings set forth in the Company's consolidated balance sheet as initial letter; and
(ii) PricewaterhouseCoopers LLP, with respect to the financial information of such date or Horizon Health and ABS, included and incorporated by reference in the notes thereto set forth in Disclosure Package and the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Final Offering Memorandum, (aA) neither confirming that it is an independent registered public accounting firm within the Company nor any Subsidiary has meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (1B) incurred any liabilities stating, as of the date of each of the bring-down letters (or, with respect to matters involving changes or obligations, direct developments since the respective dates as of which specified financial information is given or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not incorporated by reference in the ordinary course Disclosure Package and the Final Offering Memorandum, as of business, (b) there has a date not been any event or development in respect more than five days prior to the date of the business or condition (applicable bring-down letter), the conclusions and findings of such firm with respect to the financial or other) information and other matters covered by each of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect initial letters and (cC) there has been no dividend or distribution confirming in all material respects the conclusions and findings set forth in each of any kind declared, paid or made by the Company on any class of its capital stockinitial letters.
(ve) The Initial Purchasers Company shall have received certificatesfurnished to the Representatives a certificate, dated the Closing Date, signed by two authorized officers the Chief Executive Officer and Chief Accounting Officer of each the Company stating, as applicable, that:
(i) The representations, warranties and agreements of the Company and the Guarantors confirmingcontained herein, as applicable, are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly as of a certain date), and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions (after giving effect to all materiality qualifiers herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, at or prior to the Closing Date; and the conditions set forth in Section 6 have been fulfilled; and
(ii) They have carefully examined the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto) and, in their opinion (A) as of the Closing Date, the Disclosure Package and the Final Offering Memorandum did not include any untrue statement of a material fact and did not omit to their knowledgestate a material fact required to be stated therein or necessary, in the matters light of the circumstances under which made, to make the statements therein not misleading, and (B) since the date of the most recent financial statements included in the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in paragraphs or contemplated in the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i), ) any change or decrease specified in the letter or letters referred to in paragraph (ii), c) or (iii) and (ivd) of this Section 86; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated in the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(vig) The Initial Purchasers Subsequent to the Execution Time, there shall not have received on been any decrease in the Closing Date opinions dated rating of any of the Company’s securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as furnished to the solvency of Representatives such further information, certificates and documents as the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it Representatives may reasonably request.
(xviii) Xxxxxx Xxxxxx & XxxxxxxOn the Closing Date, counsel to the Initial Purchasers, Acquisition shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon consummated and the matters referred to in this Section 8 Amendment shall have been executed and in order to evidence the accuracy, completeness or satisfaction in delivered by all material respects of any of the representations, warranties or conditions contained in this Agreementparties thereto.
(xviiij) The Original Notes shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD, and the Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied withclearance and settlement through The Depository Trust Company. If any of the conditions specified in this Section 8 (a) 6 shall not have been fulfilled in all material respects when and as required by provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to be fulfilled (or waived by the Representatives and counsel for the Initial Purchasers), this Agreement may be terminated by and all obligations of the Initial Purchasers on notice hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company at any time at in writing or prior by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered to the office of Weil, Gotshal & Mxxxxx LLP, 700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction the accuracy, when made and again on the Closing Date (as if made again on and as of the following conditions prior to or concurrently with such purchase:
(i) All date), of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correctherein, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on performance by the Closing Date, except that if a representation and warranty is made as Company of a specific dateits obligations hereunder, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all each of the agreements following additional terms and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.conditions:
(ii) a. The Offering Memorandum shall have been printed and copies distributed made available to the Initial Purchasers you not later than 6:00 p.m., Chicago time, on the day Business Day following the date of this Agreement Agreement, or at such later date and time as you may approve in writing.
b. No Initial Purchaser shall have discovered and disclosed to the Company on or prior to such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Xxxxxxxx & Xxxxx, counsel 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 contained in the Offering Memorandum, in the light of the circumstances under which they were made, not misleading.
c. All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the other Operative Documents, the Offering Memorandum and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
d. Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), special counsel to the Company and Xxxxxx X. Xxxxx, General Counsel of the Company each shall have furnished to the Initial Purchasers, their written opinions addressed to the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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, dated as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed substantially in the Offering Memorandumform of Exhibit A and Exhibit B hereto, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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 issuedrespectively.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) e. The Initial Purchasers shall have received certificatesfrom Xxxxxxxx & Xxxxx, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to counsel for the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an such opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLPor opinions, dated as of the Closing Date, addressed with respect to the issuance and sale of each tranche of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasersmay reasonably require.
(ix) Each of the Issuers f. The Company shall have entered into the Indenture Senior Credit Facilities and each of any Credit Documents and the Initial Purchasers shall have received copiescounterparts, conformed as executed, thereof, and the Company shall have borrowed such amounts thereunder as contemplated in the Offering Memorandum.
(x) Each of g. The Company and the Issuers Senior Note Trustee shall have entered into the Credit Facilities Senior Note Indenture and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of h. The Company and the Issuers Subordinated Note Trustee shall have entered into the Registration Rights Agreement Subordinated Note Indenture and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) i. The Company and the Initial Purchasers shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), entered into each of the Company's intention to pay all obligations with respect thereto with a portion of Senior Registration Rights Agreement and the proceeds of Subordinated Registration Rights Agreement and the Original Notes and simultaneously with the issuance of the Original Notes all such obligations Initial Purchasers shall be paid by the Company in full. Upon such paymenthave received counterparts, such credit agreement shall be terminated in accordance with the terms conformed as executed, thereof.
(xiii) j. The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as PricewaterhouseCoopers, LLP, independent certified public accountants, letters addressed to the solvency of the Company and the SubsidiariesInitial Purchasers, addressed to substantially in the form heretofore approved by the Initial Purchasers, and dated the date hereof and the Closing Date, (i) confirming that they are independent accountants as required by the Securities Act and its Rules and Regulations, (ii) stating, as of the date of each letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five Business Days prior to the date of each letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming in all material respects the conclusions and findings set forth in the letter delivered concurrently with this Agreement.
(xiv) k. The Initial Purchasers shall have received copies from Ernst & Young LLP, independent certified public accountants, letters addressed to the Initial Purchasers, substantially in the form heretofore approved by the Initial Purchasers, and dated the date hereof and the Closing Date, (i) confirming that they are independent auditors as required by the Securities Act and its Rules and Regulations, (ii) stating, as of the Guarantees conformed date of each letter (or, with respect to matters involving changes or developments since the respective dates as executedof which specified financial information is given in the Offering Memorandum, as of a date not more than five Business Days prior to the date of each letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming in all material respects the conclusions and findings set forth in the letter delivered concurrently with this Agreement.
l. The Company shall have furnished to the Initial Purchasers a certificate, dated as of the Closing Date, of a Vice President and its Chief Financial Officer or Treasurer stating that the representations, warranties and agreements of the Company (xvafter giving effect to all materiality qualifiers therein) All government authorizations required and the Guarantors in connection Section 1 are true and correct as of such Closing Date and giving effect to the consummation of the transactions contemplated by the Transaction Agreement, the Credit Documents and this Agreement; the Company and each Guarantor has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 7(m) and 7(o) have been fulfilled.
m. The Company and each Guarantor shall not have sustained since the date of the latest audited financial statements included in the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any Material Adverse Effect otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the reasonable, good faith judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the issue payment for and sale delivery of the Notes as being delivered on such Closing Date on the terms and in the manner contemplated under this Agreement and in the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effectOffering Memorandum.
(xvi) The Initial Purchasers x. Xxxxxxxx & Xxxxx shall have been furnished with wiring instructions for executed copies, certified by the application Assistant Corporate Secretary of the proceeds Company, of the Original Notes in accordance with this Agreement Transaction Agreement, the Credit Documents and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxxdocuments and opinions, counsel in addition to the Initial Purchasersthose set forth above, shall have been furnished with such documents as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 Agreement and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreementherein contained.
o. Subsequent to the execution and delivery of this Agreement (xviiii) The Original Notes no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
p. Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become directly engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be eligible for trading such) as to make it, in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter judgment of the Issuers Initial Purchasers, impracticable or inadvisable to DTC relating to proceed with the approval public offering or delivery of each tranche of the Notes by DTC for "book-entry" transfer shall have been complied withbeing delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum. If any of the conditions specified All opinions, letters, evidence and certificates mentioned above or elsewhere in this Section 8 (a) Agreement shall not have been fulfilled in all material respects when and as required by this Agreement be deemed to be fulfilled (or waived by in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Samples: Purchase Agreement (Ball Corp)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of Mergeco shall be true and correct on the date of this Agreement and on the Closing Date and all of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, Closing Date as if made on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers and Mergeco shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day Business Day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date (i) opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx Debevoise & XxxxxXxxxxxxx LLP, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., special counsel to the IssuersCompany, in the form set forth on Exhibit C-1, (B) Jenkens Xxxxxxxx & Xxxxxxxxx, a professional corporationXxxxx LLP, special regulatory counsel for to the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form set forth on Exhibit C-2, (C) Xxxxxxxxx & Xxxxxxx, special U.S. regulatory counsel to the Company, substantially in the form set forth on Exhibit C-3, (D) Xxxxx Xxxxxxxx Wall LLP, special Canadian regulatory counsel to the Company, substantially in the form set forth on Exhibit C-4, and (E)Xxxxxxxx Xxxxxx, Senior Company Counsel of Exhibits X-0the Company, X-0 substantially in the form set forth on Exhibit C-5, and ------------ --- A-3, respectively, --- attached hereto and (ii) copies of any opinions delivered in connection with any of the other Transactions together with reliance letters relating to such opinions in form and substance reasonably satisfactory to the Initial Purchasers Representative and counsel to the Initial Purchasers.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers (it being understood that if the Offering Memorandum is not printed on the date hereof, such comfort letter shall, on the date hereof, contain excerpts from the Preliminary Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included in the Preliminary Offering Memorandum and that, within twenty-four hours after the Offering Memorandum becomes available in final form (electronically or otherwise), the Initial Purchasers shall receive replacement excerpts from the Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included therein in form and substance satisfactory to the Representative and counsel to the Initial Purchasers). In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers.
(g) Mergeco and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. Mergeco shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Original Notes Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with.
(j) Immediately prior to the funding of the purchase price for the Notes by the Initial Purchasers, all conditions precedent under the Recapitalization Documents, without any material amendment thereof or waiver thereto, to the consummation of the Merger shall have been, or shall concurrently with such funding be, satisfied, and the parties the Recapitalization Agreement shall be prepared to consummate the transactions contemplated by the Recapitalization Agreement immediately after the receipt by Mergeco of the purchase price for the Notes. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandumnationally recognized rating organization, or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, counsel to the IssuersCompany and (ii) Xxxx X. Xxxxxxxx, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory general counsel for of the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 Exhibit A-1 and ------------ --- A-3A-2, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representatives. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received “comfort letters” from each of Ernst & Young LLP and KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering certain of the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchaser shall have received a “bring down comfort letter” from Ernst & Young LLP, dated as of the Closing Date, addressed to the Initial Purchasers and addressing the matters in the “comfort letter” delivered on the date hereof pursuant to the preceding sentence, except that (i) the “bring-down comfort letter” shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceInitial Purchasers and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have executed and delivered the Indenture, to which it is a party, and the Initial Purchasers shall have received copies thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "book-“book entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreementherein, shall be subject to the satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(ia) All of the representations and warranties of the Issuers Company and the Allied Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case hereof and on the Closing Date (after giving effect to the transactions contemplated hereby, Acquisition) with the same force and effect as if made on and as of the date hereof and the Closing Date, except that if a representation respectively. Each of the Company and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers the Allied Guarantors shall have performed or complied with all of the agreements and covenants herein contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date.
(iib) 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 of this Agreement or at such later date and time as to which the Initial Purchasers may determine. No agree, and no stop order suspending the qualification or exemption from qualification of the Original Notes Securities 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.
(iiic) 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 which would, as of the Closing Date, prevent the issuance of the Original Notes Securities or the consummation of the Exchange OfferAcquisition; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the IssuersCompany and the Allied Guarantors, threatened against against, the Company and/or or any Subsidiary of its subsidiaries (including subsidiaries to be acquired in the Acquisition) before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject which could reasonably be expected to the registration requirements of the Act shall have been issueda Material Adverse Effect.
(ivd) As Since the dates as of September 30which information is given in the Offering Memorandum, 2001(i) there shall not have been any material adverse change, neither 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 nor or any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth of its subsidiaries (including subsidiaries to be acquired in the Company's consolidated balance sheet as of such date or in the notes thereto Acquisition) from that set forth in the Offering Memorandum. Since September 30, 2001(ii) no dividend or distribution of any kind shall have been declared, except as set forth paid or contemplated made by the Company or any of its subsidiaries (including subsidiaries to be acquired in the Offering Memorandum, Acquisition) on any class of its capital stock and (aiii) neither none of the Company nor or any Subsidiary has of its subsidiaries (1including subsidiaries to be acquired in the Acquisition) shall have incurred any liabilities or obligations, direct or contingent, that would reasonably are or, after giving effect to the Acquisition, will be expected to have a Material Adverse Effectmaterial, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and its subsidiaries (including subsidiaries to be acquired in the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (iAcquisition), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, taken as a professional corporation, special regulatory counsel for the Companywhole, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory that are required to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received be disclosed on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect balance sheet or notes thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.generally accepted accounting principles and
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- respective obligations of the Initial Purchasers hereunder to purchase the Firm Securities and pay for the Original NotesOption Securities, as provided for in this Agreementthe case may be, shall be are subject to satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(i1) All of the The representations and warranties of the Issuers contained Company made in this Agreement qualified as to materiality shall be true and correct, or true and correct in all material respects where such representations and warranties are those not so qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) of the date hereof and each Closing Date (as if made as of such date. Closing Date);
(2) The Issuers Company shall have performed or complied with in all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.material respects their respective obligations hereunder; 21 21
(ii3) The Offering Memorandum No Initial Purchaser shall have been printed advised by the Company or shall have discovered and copies distributed disclosed to the Company that the Final Memorandum, as of the date thereof, or as of the applicable Closing Date, contained or contains an untrue statement of fact which, in the opinion of the Initial Purchasers or in the opinion of counsel to the Initial Purchasers on is material, or omitted or omits to state a fact which, in the day following opinion of the date Initial Purchasers or in the opinion of this Agreement counsel to the Initial Purchasers, is material and is required to be stated therein or at is necessary to make the statements therein not misleading.
(4) On or prior to each Closing Date, the Initial Purchasers shall have received from Cravath, Swaine & Moorx, xxunsel for the Initial Purchasers, such later date opinions or letters with respect to such matters as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction reasonably request, and such counsel shall have received such documents and information as they reasonably request to enable them to pass upon such matters.
(5) On each Closing Date there shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, furnished to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs opinion (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers) of Willxxx Xxxx & Xallxxxxx, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel xxunsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers such Closing Date and in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that:
(1) Globalstar has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware; SS/L, Skynet and Cyberstar have been duly incorporated and are validly existing as corporations in good standing under the laws of the State of Delaware; each of Globalstar, SS/L, Skynet and Cyberstar has been duly qualified for the transaction of business and is in good standing under the laws of each other jurisdiction in the United States in which it owns or leases property, or conducts any business, so as to require such qualification (except where the failure to so qualify would not have a material adverse effect on the Company, Globalstar, SS/L, Skynet and Cyberstar, taken as a whole; and each of Globalstar, SS/L, Skynet and Cyberstar has all requisite power and authority and, except as disclosed in the Final Memorandum, all material governmental authorizations, licenses, certificates, franchises, permits and approvals required to own its properties and to conduct its business as described in the Final Memorandum;
(2) to such counsel's knowledge, except as described in the Final Memorandum, the Company has not granted any outstanding options, warrants or commitments with respect to any shares of the capital stock of the Company, whether issued or unissued;
(3) the Securities conform in all material respects to the description thereof contained in the Final Memorandum;
(4) Affiliates which would adversely affect the Company's ability, individually or in the aggregate, to perform its obligations under this Agreement or is required to be disclosed in the Final Memorandum and which is not disclosed and correctly summarized therein;
(5) each of this Agreement and the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and conforms in all material respects to the description thereof contained in the Final Memorandum, and, assuming due execution and delivery thereof by the Initial Purchasers, constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) (except that no opinion need be expressed with respect to the indemnification or contribution provisions contained herein or therein);
(6) The execution, delivery and performance by the Company of this Agreement or the Registration Rights Agreement, and the consummation of the transactions therein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any Loral Affiliate is a party or by which the Company or any Loral Affiliate is bound or to which any of the property or assets of the Company or any Loral Affiliate is subject (except such breaches or events of default with respect thereto as are disclosed in the Final Memorandum), nor will such actions result in any violation of the provisions of the charter or by-laws (or other constitutive documents) of the Company or any Loral Affiliate or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any Loral Affiliate or any of their properties or assets;
(7) Company of the State of New York or the United States of America, except as may be required under the various state securities or Blue Sky laws or as may be required by the laws of any country other than the United States in connection with the resale of the Securities by the Initial Purchasers or as may be required under the Securities Act and the Rules and Regulations pursuant to the terms of the Registration Rights Agreement;
(8) there is no restriction upon the voting or transfer of any Securities pursuant to any agreement or other instrument of which such counsel has knowledge except as described in the Final Memorandum; and no holders of Securities of the Company have rights to the registration thereof except as described in the Final Memorandum;
(9) The statements set forth in the Final Memorandum under Material United States Federal Income Tax Considerations", insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein fairly present the information referred to therein with respect to such legal matters, documents and proceedings;
(10) The Partnership Agreement has been duly and validly authorized, executed and delivered by LQSS, Globalstar and the Company and, to the knowledge of such counsel, the other parties to such agreement have authorized, executed and delivered such agreement and assuming such authorization, execution and delivery by such other parties, such agreement is valid and binding and enforceable against the parties thereto, except as enforceability may be limited by (A) bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (B) Federal or state securities laws or principles of public policy with regard to rights to indemnity; provided, however, that no opinion is given with respect to the enforceability of any provisions contained in the Partnership Agreement which state that the parties thereto have agreed to further negotiate with respect to certain matters as specified therein;
(11) LQP (or its subsidiary) has agreed to use the license to operate mobile satellite services in the 1610-1626.5 MHz L-band and the 2483.0-0000 XXx X-xxxx xxxnted by the FCC for the exclusive benefit of Globalstar;
(12) after giving effect to the sale of the Securities by the Initial Purchasers as contemplated in the Final Memorandum, the Company will not be an "investment company" under the Investment Company Act; 24 24
(13) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein, no registration of the Securities under the Securities Act is required for the offer and sale by the Initial Purchasers of the Securities in the manner contemplated by this Agreement prior to the effectiveness of the Shelf Registration with respect to the Securities;
(14) To such counsel's knowledge, except for the statements set forth in GTL's offering memorandum dated January 21, 1999, regarding the offering of the Series A Preferred Stock, under the heading "Regulation -- United States FCC Regulation" and the Annual Report of GTL for the fiscal year ended December 31, 1998, under the heading "Business--Licensing", there are no pending or threatened proceedings which could have a material adverse effect on the validity of the authorization for construction, launch and operation of the Globalstar satellite constellation.
(15) The FCC has authorized LQP to construct a mobile satellite system capable of operating in the 1610-1626.5/2483.5-2500 MHz frequency bands, consistent with the technical specifications set forth in its application, the FCC's rules and the conditions set forth in the FCC's Order and Authorization (DA 95-128), released January 31, 1995, as modified by the Erratum, DA 95-373 (released February 29, 1995), as affirmed and modified by the Memorandum Opinion and Order, FCC 96-279 (released June 27, 1996), as modified by the FCC's Order and Authorization, DA 96-1924 (released November 19, 1996); and pursuant to FCC approval, LQP has assigned such authorization to L/Q Licensee, Inc.; however, such authorization is presently subject to modification, stay or revocation as a result of pending judicial appeals.
(16) The construction, launch and operation by Globalstar, of the Globalstar satellite constellation authorized by the Order and Authorization, (DA 95-128) released Jan. 31, 1995, as modified by the Erratum, (DA 95-373) released February 28, 1995, as affirmed and modified by the Memorandum Opinion and Order (FCC 96-279) released June 27, 1996, as modified by the FCC's Order and Authorization, DA (96-1924 (released November 19, 1996), would not violate provisions of the Communications Act or the FCC's rules and policies thereunder relating to control of FCC authorizations, provided that L/Q Licensee, Inc. remains in ultimate control of the authorized facilities as defined by the rules and policies of the FCC and that there is no transfer of control of L/Q Licensee, Inc. without prior approval of the FCC. 25 25 In rendering such opinion, such counsel may limit its opinion to the laws of the State of New York, the laws of the United States and the Delaware Revised Uniform Limited Partnership Act and as to matters of fact, such counsel may rely to the extent deemed proper, on certificates of responsible officers of the Company and public officials. Such counsel shall also state that in connection with the preparation of the Preliminary Memorandum and the Final Memorandum, no facts have come to its attention which lead it to believe that the Final Memorandum, as of the Execution Time and each Closing Date, contained any untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel will express no opinion or belief with respect to the financial data contained in the Final Memorandum or with respect to any matters addressed by the opinion of Applxxx, Xxurxxxx & Xempx xxx forth in Section 6(f) hereof with respect to Bermuda law matters.
(6) On each Closing Date there shall have been furnished to the Initial Purchasers the opinion (addressed to the Initial Purchasers. In addition) of Applxxx, Xxurxxxx & Xempx, xxunsel to the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLPCompany, dated as of the such Closing Date, addressed to the Initial Purchasers Date and in form and substance satisfactory to counsel for the Initial Purchasers and counsel to the Initial Purchasers.effect that:
(ix1) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copiesCompany and GTL has been duly incorporated as an exempted company and is validly existing as an exempted company in good standing under the laws of Bermuda; and has full power and authority and has obtained all Bermuda governmental authorizations, conformed licenses, certificates, franchises, permits and approvals required to own its properties and to conduct its business as executed, thereof.described in the Final Memorandum;
(x2) Each the Company has authorized share capital as set forth in the Final Memorandum, and all the issued shares of Common Stock of the Issuers shall Company have entered into been duly and validly authorized and issued and are fully paid and not subject to further calls;
(3) the Credit Facilities Securities have been duly authorized and each executed and are in a form contemplated by the Preferred Stock Schedule and, when the Securities are issued and delivered pursuant to this Agreement, the Securities will be duly and validly issued, fully paid and nonassessable; the offer and sale of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each Securities has been duly authorized by the Company; the issuance of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders Securities is not subject to any preemptive or similar rights under the Company's credit agreement dated Memorandum of Association or 26 26 Bye-Laws, in each case as of December 30, 1997, as amended (as in effect on amended; and the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as Securities conform to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading descriptions thereof in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.Final Memorandum;
Appears in 1 contract
Samples: Purchase Agreement (Loral Space & Communications LTD)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received certificates, dated the Closing Date, signed by any combination of two of the chairman of the board of directors, chief executive officer, chief financial officer and general counsel of each of XM Holdings and the Company, certifying as to the foregoing and to the effect in Section 8(c), among other matters.
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 5(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or or, to XM Holdings’s knowledge, threatened.
(iiic) Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt or preferred stock of XM Holdings, the Company or any Subsidiary by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(d) No action event or condition of a type described in Section 5(a)(xix)(2) hereof shall have been taken and no statuteoccurred or shall exist, rule, regulation which event or order shall have been enacted, adopted or issued by any governmental agency that would, as condition is not described in each of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or Pricing Disclosure Package (excluding any amendment or supplement thereto, ) and the Final Offering Memorandum (excluding any amendment or any order asserting that any supplement thereto) the effect of which in the judgment of the transactions Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement are subject to Agreement, the registration requirements of Pricing Disclosure Package and the Act shall have been issuedFinal Offering Memorandum.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vie) The Initial Purchasers shall have received on the Closing Date opinions (i) an opinion and negative assurance letter each dated the Closing Date, addressed to the Initial Purchasers, of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit A-1 attached hereto, X-0 (ii) an opinion and ------------ --- A-3negative assurance letter each dated the Closing Date, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel addressed to the Initial Purchasers, of Xxxxx & Xxxxxxx L.L.P., regarding regulatory and certain corporate matters, substantially in the form of Exhibit A-2 attached hereto and (iii) an opinion dated the Closing Date, addressed to the Initial Purchasers, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to Sirius, substantially in the form of Exhibit A-3 hereto.
(viif) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) negative assurance letter dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiig) On the date hereof, the Initial Purchasers shall have received (i) a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package and (ii) a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Final Offering Memorandum. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representative and counsel to the Initial Purchasers.
(h) XM Escrow and the Trustee shall have executed and delivered the Indenture, the Company, XM Escrow and the Trustee shall have executed and delivered the Assumption Indenture and the Company, XM Escrow and the Guarantors and the Trustee shall have executed and delivered the Guarantor Indenture and the Initial Purchasers shall have received copies thereof.
(i) The Original Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(j) XM Escrow, XM Holdings, the Escrow Agent and the Trustee shall have executed and delivered the Escrow Agreement and the Initial Purchasers shall have received copies thereof. The Escrow Account shall have been established by the Escrow Agent, to the reasonable satisfaction of the Initial Purchasers. XM Holdings and the Company shall have deposited the Initial Escrow Amount into the Escrow Account and the Escrowed Funds shall be remaining in the Escrow Account. XM Escrow shall have granted, to the extent it has rights therein, a valid first priority security interest in the Escrow Account and all Escrowed Funds maintained therein in favor of the Trustee on behalf of the holders of the Senior Notes and shall have perfected such security interest to the reasonable satisfaction of the Initial Purchasers and the other conditions contained in the Escrow Agreement shall have been satisfied. The Initial Purchasers shall have received copies of such documents as they may reasonably request in connection with the foregoing.
(k) XM Escrow and the Company shall have executed and delivered the Escrow Merger Agreement and the Initial Purchasers shall have received copies thereof.
(l) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Senior Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers Issuer contained in this Agreement shall be true and correctherein, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on performance by the Closing Date, except that if a representation and warranty is made as Issuer of a specific dateits obligations hereunder, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all each of the agreements following additional terms and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.conditions:
(iia) The Offering Memorandum shall have been printed and copies distributed made available to the Initial Purchasers you not later than 6:00 p.m., Eastern standard time, on the business day following the date of this Agreement Agreement, or at such later date and time as you may approve in writing.
(b) The Initial Purchasers shall not have discovered and disclosed to the Issuer on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Hogan & Hartson L.L.P., counsel for the Initial Purchasers, is materxxx xr oxxxx xx state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All partnership proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the other Operative Documents and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Issuer shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Jaffe, Raitt, Heuer & Weiss, P.C. shall have furnished to the Initial Purchasers, its writxxx xpinion (based on the assumptions and subject to the exclusions contained therein), as counsel to the Issuer, addressed to the Initial Purchasers and dated the Closing Date, substantially as to the matters set forth in Exhibit A hereto.
(e) The Initial Purchasers shall have received from Hogan & Hartson L.L.P., counsel for the Initial Purchasers, such opixxxx or xxxxxxxs, dated the Closing Date, with respect to the issuance and sale of the Notes, the Offering Memorandum and other related matters as the Initial Purchasers may determine. No stop order suspending reasonably require, and the qualification or exemption from qualification of the Original Notes in any jurisdiction Issuer shall have been issued and no proceeding furnished to such counsel such documents as they reasonably request for that the purpose shall have been commenced or shall be pending or threatenedof enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants under Rule 101 of the American Institute of Certified Public Accountants' Code of Professional Conduct and its interpretations and rulings thereunder and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information (including any pro forma financial information) and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(g) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Issuer shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants under Rule 101 of the American Institute of Certified Public Accountants' Code of Professional Conduct and its interpretations and rulings thereunder, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information (including any pro forma financial information) and other matters covered by the initial letter and (iii) No action confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) The Issuer shall have been taken furnished to the Initial Purchasers a certificate, dated the Closing Date, of the chief executive officer, president or a vice president of the General Partner on its behalf and no statutethe chief financial officer of the General Partner stating that:
(A) The representations, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, warranties and agreements of the Issuer in Section 1 are true and correct as of the Closing Date; the Issuer has complied with all its agreements contained herein; and the conditions set forth in Sections 7(i) and 7(k) have been fulfilled; and
(B) They have carefully examined the Offering Memorandum and, prevent in their opinion (a) as of its date, the issuance Offering Memorandum did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the Original Notes statements therein not misleading, (b) since the date of such Offering Memorandum no event has occurred which should have been set forth in a supplement or consummation of amendment to the Exchange Offer; Offering Memorandum and (c) except as disclosed reflected in or contemplated by the Offering Memorandum, there shall not have been since the respective dates as of which information is given in the Offering Memorandum, no actionany material adverse change in the financial condition or in the results of operations, suit business affairs or proceeding shall have been commenced business prospects of the Issuer and be pending against its subsidiaries considered as one enterprise, whether or affecting or, not arising in the ordinary course of business (other than changes relating to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum economy in general or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject Issuer's industry in general and not specifically related to the registration requirements of the Act shall have been issuedIssuer).
(ivi) As of September 30, 2001, neither Neither the Company Issuer nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in of its subsidiaries shall have sustained since the Company's consolidated balance sheet as date of such date or in the notes thereto set forth latest audited financial statements included in the Offering Memorandum. Since September 30Memorandum (i) any loss or interference with its business from fire, 2001explosion, except flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date there shall not have been any change in the capital stock, Partnership Interests or long-term debt of the Issuer or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, business prospects, management, financial position, stockholders' or unitholders' equity, as applicable, or results of operations of the Issuer and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of Lehman Brothers Inc. on behalf of the Initial Purchasers, so materiax xxx adverse as to make it impracticable or inadvisable to proceed with the delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Issuer on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, or there shall have been a material disruption in the settlement of securities which, in the judgment of Lehman Brothers Inc. on behalf of the Initial Purchasers, make it inxxxxxxble or impractical to proceed with the offering or delivery of the Notes, (aii) neither a banking moratorium shall have been declared by federal or state authorities, (iii) the Company nor any Subsidiary has (1) incurred any liabilities United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States, there shall have been a declaration of a national emergency or obligationswar by the United States or an act of terrorism shall have occurred which, direct in the judgment of Lehman Brothers Inc. on behalf of the Initial Purchasers, make it inxxxxxxble or contingent, that would reasonably be expected impracticable to have a Material Adverse Effectproceed with the offering or delivery of the Notes, or (2iv) entered into any there shall have occurred such a material transaction not adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the ordinary course United States shall be such) as to make it, in the judgment of business, (b) there has not been any event or development in respect Lehman Brothers Inc. on behalf of the business Initial Purchasers, impracticaxxx xx inadvisable to market the Notes or condition (financial or other) to enforce contracts for the sale of the Company and the Subsidiaries that, either individually or Notes in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by manner contemplated in the Company on any class of its capital stockOffering Memorandum.
(vk) The Initial Purchasers shall have received certificates, dated On the Closing Date, signed the Notes shall be rated at least BBB by two authorized officers of each of the Company S&P and Baa2 by Moody's and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers Issuer shall have received delivered to the Initial Purchaserx x xxxter dated on or before the Closing Date opinions dated the Closing Datefrom each such rating agency, addressed or other evidence satisfactory to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel confirming that the Notes have such ratings; and subsequent to the Issuers, execution and delivery of this Agreement (Bi) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel no downgrading shall have occurred in the rating accorded debt securities of the Issuer by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Company, Rules and Regulations and (Cii) Xxxxxxx X. Xxxxxno such organization shall have publicly announced that it has under surveillance or review, general counsel for with possible negative implications, its rating of the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersIssuer's debt securities.
(viil) The Initial Purchasers Issuer shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received furnished a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and Secretary's Certificate in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of .
(m) On the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereofbeen fully executed and delivered by the Issuer.
(xiin) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx Hogan & Xxxxxxx, counsel to the Initial Purchasers, Hartson L.L.P. shall have been furnished with such documents other docxxxxxs axx xxxxions, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 Agreement and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreementherein contained.
(xviiio) The Original Notes All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement deemed to be fulfilled (or waived by in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx Xxxxxx & Xxxxxx L.L.P.LLP, counsel to the IssuersCompany, (Bii) Jenkens & XxxxxxxxxXxxxxx X. XxXxxxxxx, a professional corporation, special regulatory general counsel for of the Company, and (Ciii) Xxxxxxx X. Xxxxx, general Xxxxxx & Xxxx, P.A., local counsel for to the Company in the State of New Mexico, substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- B-3 attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceRepresentative and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Holly Corp)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchaser shall have received a certificate, dated the Closing Date, signed by the chief executive officer or president and chief financial officer of the Company, certifying as to the foregoing and to the effect in Sections 6(c) and 6(k).
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers Purchaser on the day following the date of this Agreement or at such later date as the Initial Purchasers Purchaser may reasonably determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action shall have been taken Between the time of execution of this Agreement 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 there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of the Original Notes (i) any intended or consummation of the Exchange Offer; except as disclosed potential downgrading or (ii) any surveillance or review or possible change that does not indicate an improvement, in the Offering Memorandumrating accorded any securities of, no actionor guaranteed by, suit Parent or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before by any court or arbitrator or any governmental body, agency or official “nationally recognized statistical rating organization,” as that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing term is defined in Rule 436(g)(2) under the use of the Preliminary Offering Memorandum or 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 issuedAct.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vd) The Initial Purchasers Issuers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, furnish to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on you at the Closing Date opinions dated an opinion of Irell & Xxxxxxx LLP, counsel for the Closing DateIssuers, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company Purchaser substantially in the form of Exhibits X-0Exhibit A hereto, X-0 and ------------ --- A-3, respectively, --- attached hereto dated the Closing Date and in form and substance reasonably satisfactory to Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser.
(e) The Issuers shall furnish to you at the Closing Date an opinion of Xxxxx Xxxx LLP, Arizona counsel to Xxxxxxx Xxxx Southwest, Inc., addressed to the Initial Purchasers Purchaser substantially in the form of Exhibit B hereto, dated the Closing Date and in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to for the Initial PurchasersPurchaser.
(viif) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLPPurchaser, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Purchaser. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 6 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiig) You shall have received from Ernst & Young LLP letters dated, respectively, dated as of the date the Offering Memorandum is distributed to potential investors and the Closing Date and addressed to the Initial Purchaser in the forms heretofore approved by you.
(h) The Original Notes Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchaser shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchaser shall have received executed counterparts thereof.
(i) The Initial Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(j) The Securities shall be eligible for trading in the Portal market PORTAL upon issuance.
(xix) . All agreements set forth in the representation letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer shall have been complied with.
(k) Between the time of execution of this Agreement and the Closing Date no material adverse change, financial or otherwise, in the business, assets, properties, prospects, condition or results of operations of Parent and the Subsidiaries, taken as a whole, shall have occurred or become known to the Issuers.
(l) Prior to the Closing Date, the Issuers shall have furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser may reasonably request. If any of the conditions specified in this Section 8 (a) 6 shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial PurchasersPurchaser), this Agreement may be terminated by the Initial Purchasers Purchaser on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 6 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchaser on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- respective obligations of the several Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction the accuracy, on and as of the following conditions prior to or concurrently with such purchase:
(i) All date hereof and the Closing Date, of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correctherein, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated herebyaccuracy of the statements of the Company and its officers made in any certificates delivered pursuant hereto, on to the Closing Date, except that if a representation and warranty is made as performance by the Company of a specific dateits obligations hereunder, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all each of the agreements following additional terms and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.conditions:
(iia) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchasers as promptly as practicable on the day or following the date of this Agreement or at such later other date and time as to which the Initial Purchasers may determine. No agree; and no stop order suspending the qualification or exemption from qualification sale of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding proceedings for that purpose shall have been commenced or shall be pending or threatened.
(iiib) All requisite corporate, limited liability company and limited partnership proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be satisfactory in all material respects to the Initial Purchasers and the Company shall have furnished to the Initial Purchasers all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(c) McGuireWoods LLP shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex B hereto.
(d) The Initial Purchasers shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of Xxxxxx Xxxxxxxx, addressed to the Initial Purchasers and dated the date hereof, in form and substance reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers.
(f) The Company shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of Xxxxxx Xxxxxxxx, addressed to the Initial Purchasers and dated the Closing Date (A) confirming that they are independent public accountants with respect to the Company and its Subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (B) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letter), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letter are accurate and (C) confirming in all material respects the conclusions and findings set forth in the Initial Letter.
(g) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its Vice President, Secretary and Treasurer, and its Vice President and Controller stating that (A) such officers have carefully examined the Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum (whether through incorporation by reference or otherwise) so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C) as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, the Company has complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder on or prior to the Closing Date, and subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been no material adverse change in the financial position or results of operation of the Company or any of its Subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, except as set forth in the Offering Memorandum.
(h) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company.
(i) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(j) The Securities shall have been approved by the NASD for trading in the PORTAL Market.
(k) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(l) There shall not have occurred any invalidation of Rule 144A or Regulation S under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the reasonable judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Securities contemplated hereby.
(m) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto or document incorporated by reference therein), there shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, the effect of which, in any such case described above, is, in the reasonable judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (exclusive of any amendment or supplement thereto or document incorporated by reference therein).
(n) 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 or body which would, as of the Closing Date, prevent the issuance or sale of the Original Notes Securities; and no injunction, restraining order or consummation order of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit any other nature by any federal or proceeding state court of competent jurisdiction shall have been commenced and be pending against issued as of the Closing Date which would prevent the issuance or affecting or, sale of the Securities.
(o) Subsequent to the knowledge execution and delivery of this Agreement (i) no downgrading shall have occurred in the Issuers, threatened against rating accorded the Company and/or any Subsidiary before any court Securities or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its rating of the Securities or any of the Company's other debt securities or preferred stock.
(p) Subsequent to the execution and delivery of this Agreement are subject to the registration requirements there shall not have occurred any of the Act following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been issued.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities suspended or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effectlimited, or (2) entered into minimum prices shall have been established on any material transaction not such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in the ordinary course any securities of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers exchange or in the over-the-counter market shall have received certificatesbeen suspended or (ii) any moratorium on commercial banking activities shall have been declared by federal or New York state authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or any calamity or crisis, dated either within or outside the Closing DateUnited States, signed by two authorized officers or (iv) a material adverse change in general economic, political or financial conditions or the financial markets in the United States (or the effect of each of international conditions on the Company and financial markets in the Guarantors confirming, as of the Closing Date, to their knowledgeUnited States shall be such), the matters set forth effect of which, in paragraphs (i), (ii), the case of clauses (iii) and (iv) ), is, in the reasonable judgment of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Securities on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (Aexclusive of any amendment or supplement thereto or document incorporated by reference therein).
(q) Xxxxxxx & XxxxxWith respect to any default, Mayoror any event which, Daywith notice or lapse of time or both, Xxxxxxxx & Xxxxxx L.L.P.would constitute a default, counsel in the due performance or observance of any term, covenant or condition restricting the extent to which the Company's Subsidiaries may enter into loan agreements which prohibit the payment of dividends or the making of loans or transferring of property to the IssuersCompany or to other Subsidiaries contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument evidencing indebtedness to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of their property or assets is subject, the Company shall have delivered to the Initial Purchasers evidence satisfactory to the Initial Purchasers that (i) the Company has received a written waiver (which may by its terms be effective only until a date not earlier than December 7, 2001) of all such defaults and the aggregate principal amount outstanding under the Subsidiary loan agreements causing such defaults (the "Subsidiary Loan Agreements") does not exceed $75.0 million, (Bii) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the CompanyCompany has repaid the entirety of the obligations, and terminated any related commitments, under the Subsidiary Loan Agreements, (Ciii) Xxxxxxx X. Xxxxxthe Subsidiary Loan Agreements have been modified to remove the provisions causing such defaults, general counsel for (iv) any combination of the Company substantially foregoing, the result of which is that all such defaults have been cured or waived, or (v) such defaults are otherwise cured. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and provisions hereof only if they are in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersXxxxxxx Xxxxxxx & Xxxxxxxx.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesDebentures, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 5:00 p.m., New York City time, on the day following the date of this Agreement or at such later date and time as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) 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 Original Notes Securities or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against the Company either Issuer and/or any Restricted Subsidiary before any court or arbitrator or any governmental body, agency or official that that, if adversely determined, would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vd) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors Issuers confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (ii), (iiib) and (ivc) of this Section 8.
(vie) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx Xxxxx, Xxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., United States counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for Guarantor and the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit A-1 hereto, X-0 and ------------ --- A-3(ii) Xxxxxxx XxXxxxxx Sterling Scales, respectivelyCanadian counsel to the Company, --- attached substantially in the form of Exhibit A-2 hereto and (iii) Xxxxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel to the Company, substantially in the form of Exhibit A-3 hereto, each in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(viif) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(viiig) The Initial Purchasers shall have received a "comfort letterletters" from PricewaterhouseCoopers each of (i) KPMG LLP and (the "Company Accountants"), (ii) Xxxxxx Xxxxxxxx LLP, independent public accountants for Xxxxxxxx (the Company"Xxxxxxxx Accountants") and (iii) KPMG LLP, independent public accountants for Xxxxxxxx (the "Xxxxxxxx Accountants") dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLPeach of the Company Accountants, the Xxxxxxxx Accountants and the Xxxxxxxx Accountants, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ixh) Each of the The Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(xi) Each of the The Issuers shall have entered into the Credit Facilities Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvij) The Initial Purchasers shall have been furnished with wiring instructions for the application copies of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon and all closing documents from the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any closings of the representations, warranties or conditions contained in this Agreementtransactions contemplated hereby.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinePurchaser in accordance with Section 4(b) hereof. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt or preferred stock of the Company or any Subsidiary by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(d) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering MemorandumPricing Disclosure Package, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against the Company and/or any Subsidiary Issuer before any court or arbitrator or any governmental body, agency or official that that, if adversely determined, would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement or 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.
(ive) As of September 30Since December 31, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 20012005, except as set forth or contemplated in the Offering MemorandumPricing Disclosure Package, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vf) The Initial Purchasers Purchaser shall have received certificates, dated the Closing Date, signed by two an authorized officers officer of each of the Company and the Guarantors Issuer confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 8.
(vig) The Initial Purchasers Purchaser shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial PurchasersPurchaser, of (A) Xxxxxxx Akin Gump Sxxxxxx Hxxxx & XxxxxFxxx, MayorLLP with respect to the laws of the State of New York and the federal laws of the United States including customary qualifications and limitations and Jones, DayWalker, Xxxxxxxx Pxxxxxxxx, Carrère & Xxxxxx L.L.P.Dxxxxxx, L.L.P. with respect to laws of the State of Louisiana including customary qualifications and limitations, each of which are counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 B-1 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersB-2 hereto.
(viih) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial PurchasersPurchaser) dated the Closing Date of Xxxxxx Xxxxxx from Vxxxxx & XxxxxxxExxxxx L.L.P., counsel to the Initial PurchasersPurchaser.
(viiii) The Initial Purchasers Purchaser shall have received a "“comfort letter" ” from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx Deloitte & Touche LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers Purchaser and in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers Purchaser shall have received a "“bring-down comfort letter" ” from PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers Purchaser and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser.
(ixj) Each of the Issuers and the Trustee shall have entered into executed and delivered the Indenture and each of the Initial Purchasers Purchaser shall have received copies, conformed as executed, thereof.
(xk) Each of the Issuers shall have entered executed and delivered into the Credit Facilities Registration Rights Agreement and each of the Initial Purchasers Purchaser shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xvl) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's Issuers’ obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvim) The Initial Purchasers Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xviin) Xxxxxx Xxxxxx Vxxxxx & XxxxxxxExxxxx L.L.P., counsel to the Initial PurchasersPurchaser, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiio) The Original Notes shall be eligible for trading in the Portal market PORTAL upon issuance.
(xix) . All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in The documents required to be delivered by this Section 8 (a) shall not have been fulfilled will be delivered at the office specified in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers Section 3 hereof on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Samples: Purchase Agreement (Phi Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers and the Guarantors shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the Chief Financial Officer and Treasurer of the Issuers, certifying as to the foregoing and to the effect in Section 8(c);
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.;
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt of the Issuers or order shall have been enacted, adopted or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as of the Closing Date, prevent the issuance of the Original Notes or consummation defined in Section 3(a)(62) of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.possible change; 21 US-DOCS\93433983.6
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx Xxxxxx & Xxxxxx L.L.P.LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for Issuers and the Company, Guarantors and (Cii) Xxxxxxx Xxxxxx X. XxxxxXxXxxxxxx, general counsel for of the Company Issuers and the Guarantors, substantially in the form of Exhibits X-0, X-0 Annex II(a) and ------------ --- A-3, respectively, --- Annex II(b) attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.hereto;
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.;
(xviiif) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Partnership, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers shall have received a “bring‑down comfort letter” from the independent public accountants for the Partnership, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 business days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representative and counsel to the Initial Purchasers;
(i) Neither the Partnership nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Final Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), and (ii) since the respective dates as of which information is given in the Final Offering Memorandum there shall not have been any change in the capital stock or long-term debt of the Partnership or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, partners’ or stockholders’ equity or results of operations of the Partnership or any of its Subsidiaries, otherwise than as set forth or contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement thereto);
(h) The Original Notes Initial Purchasers shall be eligible have been furnished with written instructions for trading the application of the proceeds of the Securities in the Portal market upon issuance.accordance with this Agreement and such other information as they may reasonably request; and
(xixi) All agreements set forth in the blanket representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. US-DOCS\93433983.6 If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Issuers at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, except to the provisions of Sections 4(f), 6, 7, 9, 10 and extent set forth in Section 11(d) shall remain in effecthereof. The documents required to be delivered by this Section 8 will be delivered at the office of counsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx Xxxxxx & Xxxxxx L.L.P.LLP, counsel to the IssuersCompany, (Bii) Jenkens & XxxxxxxxxXxxxxx X. XxXxxxxxx, a professional corporation, special regulatory general counsel for of the Company, and (Ciii) Xxxxxxx X. Xxxxx, general Xxxxxx & Xxxx, P.A., local counsel for to the Company in the State of New Mexico, substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- B-3 attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceRepresentative and counsel to the Initial Purchasers.
(xixg) The Initial Purchasers shall have received a copy of the executed Indenture. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Holly Corp)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase (or, in the case of conditions that relate to the Surviving Corporation and the Guarantors, substantially concurrently with such purchase:):
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied in all material respects with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Surviving Corporation, and by an authorized officer of the Initial Issuer, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the first business day immediately following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ax) Xxxxxxx Ropes & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit B-1 attached hereto, X-0 (y) Xxxxx X. Xxxxxxxx, general counsel of the Surviving Corporation, substantially in the form of Exhibit B-2 attached hereto, and ------------ --- A-3(z) opinions of local counsel in the states of Oklahoma, respectivelyMissouri, --- attached hereto California, Kentucky, Arizona and Michigan, in form and substance reasonably satisfactory to the Initial Purchasers Representative and counsel to the Initial Purchasers.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) On the date hereof, the Initial Purchasers shall have received a "comfort letter" from the independent public accountants for Parent, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Representative and counsel to the Initial Purchasers (it being understood that if the Offering Memorandum is not printed on the date hereof, such comfort letter shall, on the date hereof, contain excerpts from the Preliminary Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included in the Preliminary Offering Memorandum and that, within twenty-four hours after the Offering Memorandum becomes available in final form (electronically or otherwise), the Initial Purchasers shall receive replacement excerpts from the Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included therein in form and substance satisfactory to the Representative and counsel to the Initial Purchasers). In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from the independent public accountants for the Parent, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Representative and counsel to the Initial Purchasers.
(g) The Original Notes Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Initial Issuer to DTC relating to the approval of the Notes Securities by DTC for "book-entry" transfer shall have been complied with.
(j) The Company and the Subsidiaries parties thereto shall have executed and delivered the Credit Documents and the Initial Purchasers shall have received copies thereof. Each of the other Transactions shall have been, or shall substantially simultaneously be, consummated without any amendment or waiver of any of the Transaction Documents (other than any such amendment or waiver approved by the Representative, such approval not to be unreasonably withheld or delayed), and the Initial Purchasers shall have received satisfactory evidence thereof.
(k) The Surviving Corporation and the Guarantors shall have executed a Joinder Agreement, thereby becoming parties hereto. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Initial Issuer at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Nutone Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Series A Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by under this Agreement are subject to the registration requirements satisfaction of each of the Act shall have been issued.following conditions:
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither On the Company nor any Subsidiary has (1) incurred any liabilities or obligationsdate hereof, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLPArthxx Xxxexxxx XXX, independent public accountants for the Company, a letter dated the date of this Agreement, hereof addressed to the Initial Purchasers and Purchasers, in form and substance satisfactory to the Initial Purchasers Purchasers, containing statements and counsel information of the type ordinarily included in accountant's "COMFORT LETTERS" to Initial Purchasers, delivered according to Statement of Auditing Standards Nos. 72 and 76 (or any successor bulletins), with respect to the Initial Purchasers. In additionaudited and unaudited financial statements and certain financial information contained in the Offering Memorandum.
(b) For the period from and after the date of this Agreement and prior to the Closing Date there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any "NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(c) On the Closing Date the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLPthe favorable opinions of:
(i) Lathxx & Xatkxxx, xxunsel for the Company, dated as of the Closing Date, addressed to substantially in the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.attached hereto as Exhibit A;
(ixii) Each of the Issuers shall have entered into the Indenture Andrxx X. Xxxxxx, Xxce President and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), General Counsel of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.,
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 10 of any misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Representative:
(ia) All of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on each Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on their respective parts to be performed or performed, complied with by them or satisfied hereunder at or prior to the each Closing Date.
(iib) 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 of this Agreement or at such later date and time as to which the Initial Purchasers Representative may determine. agree.
(c) No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction referred to in Section 6(e) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) No action None of the issuance and sale of the Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by threatened against the Company or against any governmental agency that would, as of the Closing Date, prevent Initial Purchasers relating to the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no or the other Transaction Documents. No action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge best of the IssuersCompany’s knowledge, threatened against against, the Company and/or or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected expected, individually or in the aggregate, to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Free Writing Offering Document, the Offering Memorandum, or any amendment or supplement thereto.
(e) Since the respective dates as of which information is given in the Disclosure Package, (i) there shall not have occurred any change, or any order asserting that any of development involving a prospective change, in or affecting the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(iv) As of September 30general affairs, 2001management, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) ), properties, prospects, results of operations, capital stock, or long-term debt, or a material increase in the short-term debt, of the Company or any of the Subsidiaries, not contemplated by the Disclosure Package and the Subsidiaries thatOffering Memorandum that is, either individually or in the aggregatesole judgment of the Representative, would reasonably be expected so material and adverse as to have a Material Adverse Effect make it impracticable or inadvisable to proceed with the offering of the Notes on the terms and in the manner contemplated by the Transaction Documents, (cii) there has been no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of the Subsidiaries on any class of its capital stock, other than as disclosed in the Disclosure Package and the Offering Memorandum, (iii) none of the Company or any of the Subsidiaries shall have incurred any liability or obligation, direct or contingent, that is material, individually or in the aggregate, to the Company and the Subsidiaries, taken as a whole, and that is required to be disclosed on a balance sheet or notes thereto in accordance with U.S. GAAP and is not disclosed on the latest balance sheet or notes thereto included in the Disclosure Package and the Offering Memorandum and (iv) there shall not have occurred any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Disclosure Package or the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, require the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(vf) At each Closing Date and after giving effect to the consummation of the transactions contemplated by the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(g) The Initial Purchasers shall have received certificates, dated the each Closing Date, signed by two authorized officers of each the chief executive officer and the chief financial officer of the Company Company, in form and substance satisfactory to the Guarantors Representative, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 810 and that, as of such Closing Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed.
(vih) The Initial Purchasers shall have received on the Closing Date opinions Date:
(i) an opinion and letter, dated the Closing Date, addressed in form and substance satisfactory to the Initial Purchasers, of (A) Xxxxxxx Cadwalader, Xxxxxxxxxx & XxxxxXxxx LLP and Jolley Urga Xxxxx Woodbury & Xxxxxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory United States counsel for the Company, to the effect set forth in Exhibit C-1 hereto.
(ii) an opinion, dated the Closing Date, in form and (C) Xxxxxxx X. Xxxxxsubstance satisfactory to the Initial Purchasers, general of Xxxxxx and Calder, British Virgin Islands counsel for the Company, to the effect set forth in Exhibit C-2 hereto.
(iii) an opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, of King & Shine Partners, PRC counsel for the Company, addressed to the Company substantially with express consent to the release to the Initial Purchasers, to the effect set forth in Exhibit C-3 hereto.
(iv) an opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, of Exhibits X-0Haiwen & Partners, X-0 PRC counsel for the Initial Purchasers, to the effect set forth in Exhibit C-4 hereto.
(v) an opinion and ------------ --- A-3letter, respectivelydated the Closing Date, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and Purchasers, of Shearman & Sterling LLP, counsel to for the Initial Purchasers.
(viivi) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) opinion, dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxDate, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Purchasers, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Trustee, to the effect set forth in Exhibit C-5 hereto.
(i) Xxxxxx, Xxxxxxx & Xxxxxxx, P.C. (the “Auditor”), the independent registered public accounting firm for the Company, shall deliver to the Initial Purchasers. In addition, : (i) simultaneously with the Initial Purchasers shall have received execution of this Agreement a "bring-down comfort letter" signed letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, Auditor addressed to the Initial Purchasers and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative and Shearman & Sterling LLP, counsel for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained in the Preliminary Offering Memorandum, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Initial Purchasers and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative and Shearman & Sterling LLP, counsel to for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiij) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx Shearman & XxxxxxxSterling LLP, counsel to the Initial Purchasers, shall have been furnished with such documents information, certificates and documents, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(k) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company, and the Notes shall have been duly authenticated by the Trustee.
(l) On or after the date hereof (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization 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.
(m) The Notes shall have been approved for trading on The PORTAL Market.
(n) Each of the Transaction Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviiio) The Original All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Transaction Documents and all documents and papers relating thereto shall be eligible for trading reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in the Portal market upon issuanceconnection therewith, all in form and substance reasonably satisfactory to them.
(xixp) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as opinions, certificates, letters, schedules, documents or instruments required by this Agreement Section 10 to be fulfilled (or waived delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representative and counsel to the Initial Purchasers), this Agreement may be terminated by . The Company shall furnish the Initial Purchasers on notice to such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Company at any time at Initial Purchasers shall reasonably request.
(q) On or prior to the Closing Date, the Initial Purchasers shall have received a lock up agreement substantially in the form attached hereto as Exhibit B signed by the Company’s Executive Officers, Directors and such termination shall be without liability of any party those shareholders listed on Schedule V hereto.
(r) On or prior to any other party. Notwithstanding any such terminationthe Closing Date, the provisions of Sections 4(f), 6, 7, 9, 10 Initial Purchasers shall have received a letter containing the representations and 11(d) shall remain agreements set forth in effectAnnex B to the Offering Memorandum from all Institutional Accredited Investors purchasing Notes pursuant to this Agreement.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum Circular shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(a). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the Applicable Time, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, substantially to the effect set forth in Exhibit B attached hereto, including with respect to Guarantors organized under the laws of the states of Delaware and Texas; (Cii) Xxxxxxx X. Xxxxx, general counsel for to the Company Guarantors organized under the laws of the State of Oklahoma substantially in the form of Exhibits X-0Exhibit C, X-0 (iii) counsel to the Guarantor organized under the laws of the State of Kansas substantially in the form of Exhibit D, (iv) counsel to the Guarantor organized under the laws of the State of New Mexico substantially in the form of Exhibit E, and ------------ --- A-3(v) special Federal Aviation Administration counsel in the State of Oklahoma that will render an opinion as to the enforceability of the Security Agreement in relation to the Aircraft (as defined in the Security Agreement) and the perfection of the Lien on the Security Agreement on such Aircraft, respectivelyin each case, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers Representatives and counsel to the Initial Purchasers.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering the financial and accounting information in the Preliminary Offering Circular and the Pricing Supplement. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Circular and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers.
(g) The Original Notes Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof. The Grantors and the Trustee shall have executed and delivered the Security Agreement and any other Security Documents to which they are intended to be a party, and the Initial Purchasers shall have received copies thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval eligibility of the Notes by Securities for clearance and settlement through DTC for "book-entry" transfer shall have been complied with.
(j) The Trustee shall have received (with a copy for the Initial Purchasers):
(i) appropriately completed copies, which have been duly authorized for filing by the appropriate entity, of UCC Financing Statements naming the Company and each other Grantor as a debtor and the Trustee as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code in all jurisdictions as may be necessary or, in the reasonable opinion of any of the Trustee, or the Initial Purchasers and their respective counsel, desirable to perfect the Liens of the Trustee pursuant to the Security Documents;
(ii) termination statements (or copies of authorizations to file termination statements) with respect to filings under the Uniform Commercial Code necessary to release all Liens (other than Permitted Collateral Liens) of any person in any Collateral described in the Security Documents previously granted by any person and authorization to file terminations of UCC-1 filings evidencing such Liens;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Trustee, dated a date reasonably near to the Time of Delivery, listing all effective Financing Statements which name any of the Grantors (under its present name and any previous names used in the preceding five years) as the debtor, together with copies of such Financing Statements (none of which shall cover any collateral described in the Security Documents, other than such Financing Statements that evidence Permitted Collateral Liens);
(iv) such releases, reconveyances, satisfactions or other instruments as it may request to confirm the release, satisfaction and discharge in full of all mortgages, deeds of trust, security agreements, and other documents creating or evidencing Liens (other than Permitted Collateral Liens) at any time delivered by any of the Grantors to secure any of the Grantors’ existing indebtedness that is secured by assets constituting Collateral, duly executed, delivered and acknowledged in recordable form by the grantee named therein or its of record successors or assigns;
(v) documents from each of the lenders under any of the Grantors’ existing indebtedness that is secured by assets constituting Collateral (other than such indebtedness secured by Permitted Collateral Liens) indicating the total amount of indebtedness payable to such lender and providing that such lender shall, upon payment to such lender of the full amount of the indebtedness payable to it, immediately release all Liens held by it and provide all related documentation necessary to evidence such release in form and substance satisfactory to the Trustee and its counsel;
(vi) all certificates or instruments (if any) representing or evidencing the Collateral in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Trustee;
(vii) certificates of the Grantors’ insurance brokers in form and substance reasonably satisfactory to the Initial Purchasers confirming that all insurance requirements of the Security Documents are satisfied; and
(viii) such other documents, approvals, affidavits, opinions or certificates as the Trustee or the Initial Purchasers may reasonably request in form and substance reasonably satisfactory to the Trustee or the Initial Purchaser, as the case may be.
(k) All UCC Financing Statements and financing statement terminations, required pursuant to clauses (i) and (ii) of paragraph (j) above (collectively, the “Financing Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Trustee (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Trustee and its counsel (i) the Filing Agent’s receipt of all Financing Statements, (ii) that the Financing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing and (iii) that the Filing Agent will notify the Trustee and its counsel of the results of such submissions within 30 days following the Closing. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers under this Agreement are several and not joint. The obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 10 of any misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Representative:
(ia) All of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on each Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on their respective parts to be performed or performed, complied with by them or satisfied hereunder at or prior to the each Closing Date.
(iib) 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 of this Agreement or at such later date and time as to which the Initial Purchasers Representatives may determine. agree.
(c) No stop order suspending the qualification or exemption from qualification of the Original Notes Securities thereof in any jurisdiction referred to in Section 6(e) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) No action None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by threatened against the Company or against any governmental agency that would, as of the Closing Date, prevent Initial Purchasers relating to the issuance of the Original Notes Securities or consummation of the Exchange Offer; except as disclosed Initial Purchasers activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no or the other Transaction Documents. No action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge best of the IssuersCompany’s knowledge, threatened against against, the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Free Writing Offering Document, the Offering Memorandum, or any amendment or supplement thereto.
(e) Since the respective dates as of which information is given in the Disclosure Package, (i) there shall not have occurred any change, or any order asserting that any of development involving a prospective change, in or affecting the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(iv) As of September 30general affairs, 2001management, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) ), properties, business prospects, results of operations, capital stock, or long-term debt, or a material increase in the short-term debt, of the Company Company, not contemplated by the Disclosure Package and the Subsidiaries thatOffering Memorandum that is, either individually or in the aggregatejudgment of the Representative, would reasonably be expected so material and adverse as to have a Material Adverse Effect make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Transaction Documents, (cii) there has been no dividend or distribution of any kind shall have been declared, paid or made by the Company on any class of its capital stock, other than as disclosed in the Disclosure Package and the Offering Memorandum, (iii) the Company shall not have incurred any liability or obligation, direct or contingent, that is material, individually or in the aggregate, to the Company, and that is required to be disclosed on a balance sheet or notes thereto in accordance with U.S. GAAP and is not disclosed on the latest balance sheet or notes thereto included in the Disclosure Package and the Offering Memorandum and (iv) there shall not have occurred any event or development relating to or involving the Company, or any of its respective officers or directors that makes any statement made in the Disclosure Package or the Offering Memorandum untrue or that, in the opinion of the Company, and their counsel or the Initial Purchasers and their counsel, require the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(vf) At each Closing Date and after giving effect to the consummation of the transactions contemplated by the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(g) The Initial Purchasers shall have received certificates, dated the each Closing Date, signed by two authorized officers of each the chief financial officer and the general counsel of the Company Company, in form and substance satisfactory to the Guarantors Representatives, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 810 and that, as of such Closing Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed.
(vih) The Initial Purchasers shall have received on the Closing Date opinions Date:
(i) an opinion, dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers Purchasers, of DLA Piper LLP (US), counsel for the Company, to the effect set forth in Exhibit B hereto.
(ii) an opinion, dated the Closing Date, in form and counsel substance reasonably satisfactory to the Initial Purchasers, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers, relating to this Agreement and such other related matters as the Initial Purchasers may require.
(viii) The Initial Purchasers Ernst & Young, LLP (the “Auditor”), the independent registered public accounting firm for the Company, shall have received on the Closing Date an opinion (satisfactory in form and substance deliver to the Initial Purchasers: (i) dated simultaneously with the Closing Date execution of Xxxxxx Xxxxxx & Xxxxxxx, counsel this Agreement a signed letter from the Auditor addressed to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, in form and substance reasonably satisfactory to the Representatives and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained in the Preliminary Offering Memorandum, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Initial Purchasers and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Initial Purchasers Representatives and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to for the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as containing statements and information of the Closing Date, addressed type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the Initial Purchasers financial statements and certain financial information contained in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersOffering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiij) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the SubsidiariesSkadden, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx Arps, Slate, Xxxxxxx & XxxxxxxXxxx LLP, counsel to the Initial PurchasersPurchaser, shall have been furnished with such documents information, certificates and documents, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(k) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Securities shall have been duly executed and delivered by the Company, and the Securities shall have been duly authenticated by the Trustee.
(l) On or after the date hereof (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Securities than that on which the Securities were marketed.
(m) Each of the Transaction Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviiin) The Original Notes All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Transaction Documents and all documents and papers relating thereto shall be eligible for trading reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in the Portal market upon issuanceconnection therewith, all in form and substance reasonably satisfactory to them.
(xixo) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as opinions, certificates, letters, schedules, documents or instruments required by this Agreement Section 10 to be fulfilled (or waived delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representatives and counsel to the Initial Purchasers), this Agreement may be terminated by . The Company shall furnish the Initial Purchasers on notice to such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Company at any time at Initial Purchasers shall reasonably request.
(p) On or prior to the Closing Date, the Initial Purchasers shall have received a lock up agreement substantially in the form attached hereto as Exhibit A signed by the Company’s Executive Officers and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectDirectors on Schedule IV hereto.
Appears in 1 contract
Samples: Purchase Agreement (Telecommunication Systems Inc /Fa/)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandumnationally recognized rating organization, or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, counsel to the IssuersCompany and (ii) Xxxx X. Xxxxxxxx, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory general counsel for of the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 A-1 and ------------ --- A-3, respectively, --- A-2 attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representatives. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received “comfort letters” from each of Ernst & Young LLP and KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering certain of the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchaser shall have received a “bring down comfort letter” from Ernst & Young LLP, dated as of the Closing Date, addressed to the Initial Purchasers and addressing the matters in the “comfort letter” delivered on the date hereof pursuant to the preceding sentence, except that (i) the “bring-down comfort letter” shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceInitial Purchasers and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have executed and delivered the Indenture, to which it is a party, and the Initial Purchasers shall have received copies thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "book-“book entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 5(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Axxxxxx Xxxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit B attached hereto, X-0 including with respect to Guarantors organized under the laws of the states of Delaware and ------------ --- A-3Texas and (ii) counsel to the Guarantor organized under the laws of the State of Oklahoma substantially in the form of Exhibit C and, respectivelyin each case, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers Representative and counsel to the Initial Purchasers.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Cxxxxx Xxxxxx & XxxxxxxRxxxxxx llp, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representative and counsel to the Initial Purchasers.
(g) The Original Notes Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval eligibility of the Notes by Securities for clearance and settlement through DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received certificates, dated the Closing Date, (i) signed by any combination of two of the chairman of the board of directors, chief executive officer, chief financial officer and general counsel of each of XM Holdings and the Company and (ii) signed by any combination of two of the chairman of the board of directors, chief executive officer, chief financial officer and general counsel of Sirius, in each case certifying as to the foregoing and to the effect in Section 8(c), among other matters.
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or, to XM Holdings’s or Sirius’s knowledge, threatened.
(iiic) Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt or preferred stock of XM Holdings, the Company or any XM Subsidiary by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(d) No action event or condition of a type described in Section 5(a)(xviii) or 5(b)(xvi) hereof shall have been taken and no statuteoccurred or shall exist, rule, regulation which event or order shall have been enacted, adopted or issued by any governmental agency that would, as condition is not described in each of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or Pricing Disclosure Package (excluding any amendment or supplement thereto, ) and the Final Offering Memorandum (excluding any amendment or any order asserting that any supplement thereto) the effect of which in the judgment of the transactions Initial Purchasers makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement are subject to Agreement, the registration requirements of Pricing Disclosure Package and the Act shall have been issuedFinal Offering Memorandum.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vie) The Initial Purchasers shall have received on the Closing Date opinions (i) an opinion and negative assurance letter each dated the Closing Date, addressed to the Initial Purchasers, of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit B-1 attached hereto, X-0 (ii) an opinion and ------------ --- A-3negative assurance letter each dated the Closing Date, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel addressed to the Initial Purchasers, of Xxxxx & Xxxxxxx L.L.P., regarding regulatory and certain corporate matters, substantially in the form of Exhibit B-2 attached hereto, (iii) an opinion and negative assurance letter each dated the Closing Date, addressed to the Initial Purchasers, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to Sirius, substantially in the form of Exhibit B-3 attached hereto and (iv) an opinion dated the Closing Date, addressed to the Initial Purchasers, of Xxxxx Xxxx LLP, regarding regulatory matters, substantially in the form of Exhibit B-4 attached hereto.
(viif) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) negative assurance letter dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Such counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiig) On the date hereof, the Initial Purchasers shall have received (i) a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package and (ii) a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Final Offering Memorandum. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(h) On the date hereof, the Initial Purchasers shall have received (i) a “comfort letter” from the independent public accountants for Sirius, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package and (ii) a “comfort letter” from the independent public accountants for Sirus, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Final Offering Memorandum. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for Sirius, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(i) The Original Notes Company and the Guarantors and Sirius and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Company and Sirius shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received copies thereof.
(j) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(k) The Initial Purchasers shall assist the Issuers in arranging for Portal trading and the Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Exchangeable Notes by DTC for "“book-entry" ” transfer shall have been complied with.
(l) Sirius shall have submitted an application for the listing of the Underlying Securities and such application shall have been approved by The Nasdaq Stock Market, subject only to notice of issuance.
(m) On the date hereof, the Initial Purchasers shall have received a Certification from Xxxxx X. Xxxxx, Executive Vice President and Chief Financial Officer of Sirius (the “CFO Certification”) regarding certain financial information contained in the Pricing Disclosure Package in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, dated the date of this Agreement. In addition, on the Closing Date the Initial Purchasers shall have received a bring-down certificate of the CFO Certification dated the Closing Date in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers
(n) (i) Sirius, Xxxxxx Xxxxxxx Capital Services, Inc. and UBS AG, London Branch shall have executed and delivered the Share Lending Agreements and Sirius and the Company shall have executed and delivered the Common Stock Delivery Agreement and the Initial Purchasers shall have received copies thereof and (ii) Sirius shall have made the initial delivery of borrowed shares to the share borrowers pursuant to the Share Lending Agreements.
(o) The Company and the Guarantors and Sirius and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof
(p) The Merger shall have been consummated and the Initial Purchasers and counsel to the Initial Purchasers shall have received evidence of such consummation. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be Senior Notes are subject to satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(a) Any required order or orders of the Commission under the Holding Company Act permitting the transactions contemplated hereby substantially in accordance with the terms and conditions hereof shall be in full force and effect and shall contain no provision unacceptable to the Initial Purchasers or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to the Representatives, are deemed acceptable to the Initial Purchasers and the Company and all provisions of such order or orders hereafter entered shall be deemed acceptable to the Initial Purchasers and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of Balch & Bingham LLP, counsel for the Company, suxxxxxtiaxxx xx the form attached hereto as Schedule II.
(2) The opinion, dated the Closing Date, of Pillsbury Winthrop LLP, counsel to the Trustee, substantially in the form attached hereto as Schedule III.
(3) The opinion, dated as of the Closing Date, of Dewey Ballantine LLP, counsel for the Initial Puxxxxxxxx, xxxxxxxxxxxxx xn the form attached hereto as Schedule IV.
(4) At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Offering Memorandum, any material adverse change in the business, properties or financial condition of the Company, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President or any Vice President of the Company, dated as of the Closing Date, to the effect that (i) All of there has been no such material adverse change, (ii) the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or Section 1 hereof are true and correct in all material respects where such representations with the same force and warranties are not qualified by materiality or Material Adverse Effect, on the date effect as though expressly made at and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation Date and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicableiii) as of such date. The Issuers shall have performed or the Company has complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on its part to be performed or complied with by them at satisfied on or prior to the Closing Date.
(ii5) The Offering Memorandum On the Closing Date, the Representatives shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption received from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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, Deloitte & Touche LLP a letter dated as of the Closing Date, prevent Date to the issuance effect that: (A) they are independent public accountants with respect to the Company within the meaning of the Original Notes or consummation Securities Act and the rules and regulations under the Securities Act; (B) in their opinion, the financial statements audited by them and included in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange OfferAct and the rules and regulations under the Exchange Act; and (C) on the basis of certain limited procedures performed through a specified date not more than five business days prior to the date of such letter, namely (i) reading the minute books of the Company; (ii) performing the procedures specified by the American Institute of Certified Public Accountants ("AICPA") for a review of interim financial information as described in Statement on Auditing Standards No. 71, "Interim Financial Information", on the unaudited financial statements, if any, of the Company included in the Offering Memorandum and of the latest available unaudited financial statements of the Company, if any, for any calendar quarter subsequent to the date of those included in the Offering Memorandum; and (iii) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding such unaudited financial statements or any specified unaudited amounts derived therefrom (it being understood that the foregoing rocedures do not constitute an audit performed in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP make no representations as to the sufficiency of such procedures for the Initial Purchasers' purposes), nothing came to their attention that caused them to believe that: (1) any material modifications should be made to the unaudited condensed financial statements included in the Offering Memorandum for them to be in conformity with generally accepted accounting principles; (2) such unaudited condensed financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related published rules and regulations thereunder; (3) the unaudited amounts for Operating Revenues, Earnings Before Interest and Income Taxes and Net Income and the unaudited Ratio of Earnings to Fixed Charges set forth in the Offering Memorandum do not agree with the amounts set forth in or derived from the unaudited financial statements for the same period or were not determined on a basis substantially consistent with that of the corresponding audited amounts or ratios included in the Offering Memorandum; (4) as of a specified date not more than five business days prior to the date of delivery of such letter, there has been any change in the capital stock or long-term debt of the Company or any decrease in net assets as compared with amounts shown in the latest audited balance sheet, except as in each case for changes or decreases which (i) the Offering Memorandum discloses have occurred or may occur, (ii) are occasioned by the declaration of dividends, (iii) are occasioned by draw-downs under existing pollution control financing arrangements, (iv) are occasioned by draw-downs and regularly scheduled payments of capitalized lease obligations, (v) are occasioned by the purchase or redemption of bonds or stock to satisfy mandatory or optional redemption provisions relating thereto, or (vi) are disclosed in such letter; and (5) the unaudited amounts for Operating Revenues, Earnings Before Interest and Income Taxes and Net Income and the unaudited Ratio of Earnings to Fixed Charges for any calendar quarter subsequent to those set forth in (3) above, which, if available, shall be set forth in such letter, do not agree with the amounts set forth in or derived from he unaudited financial statements for the same period or were not determined on a basis substantially consistent with that of the corresponding audited amounts or ratios included in the Offering Memorandum. Deloitte & Touche LLP shall also have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, (in each case to the knowledge extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the IssuersCompany and its subsidiaries subject to the internal controls of the Issuer's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, threatened against a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(6) On the Closing Date, Dewey Ballantine LLP, counsel for the Initial Pxxxxxxxxx xxxxx xave been furnished with such documents and opinions as they may reasonably equire for the purpose of enabling them to pass upon the issuance and sale of the Senior Notes as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and/or any Subsidiary before any court in connection with the issuance and sale of the Senior Notes as herein contemplated shall be satisfactory in form and substance to the Representatives and Dewey Ballantine LLP, counsel for the Initial Purxxxxxxx.
(7) That no amendment or arbitrator or any governmental body, agency or official that would reasonably be expected supplement to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum shall be unsatisfactory in form to Dewey Ballantine LLP or shall contain information (other thxx xxxx respect to an amendment or supplement relating solely to the activity of the Initial Purchasers) which, in the reasonable judgment of the Representatives, shall materially impair the marketability of the Senior Notes.
(8) Beck shall have consented to the references to it in the Offering Memorandum and the use of the Independent Engineer's Report prepared by Beck and contained in Annex A to the Offering Memorandum; and confirmed that nothing has come to their attention in connection with the preparation of the Independent Engineer's Report which would cause it to believe that the Independent Engineer's Report, as of its date, 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth statements in the Offering Memorandum. Since September 30Memorandum specifically attributed to it, 2001, except as set forth or contemplated in of the date of the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities were inaccurate or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into misleading in any material transaction not in respect, as evidenced by a certificate satisfactory to the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificatesof an authorized officer of Beck, delivered and dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi9) PA Consulting Services, Inc. ("PA") shall have consented to the references to it in the Offering Memorandum and the use of the Independent Market Expert's Report prepared by PA and contained in Annex B to the Offering Memorandum; and since the date of the Independent Market Expert's Report, no event affecting the Report or the matters referred to therein shall have occurred (i) which shall make untrue or incorrect in any material respect, as of the date of this Agreement, any information or statement contained in the Independent Market Expert's Report or in the Offering Memorandum relating to matters referred to in the Independent Market Expert's Report or (ii) which is not reflected in the Offering Memorandum but should be reflected therein in order to make the statements and information contained in the Offering Memorandum relating to matters referred to in the Independent Market Expert's Report, in light of the circumstances under which they were made, not misleading, as evidenced by a certificate satisfactory to the Initial Purchasers of an authorized officer of PA, delivered and dated as of the Closing Date.
(10) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement executed by theCompany and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereofRepresentatives.
(xii11) The Company shall have notified the lenders under the Company's credit agreement dated performed its obligations when and as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated provided under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions condition specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers)fulfilled, this Agreement may be terminated by the Initial Purchasers on Representatives by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such terminationparty except as provided in Sections 4, the provisions of Sections 4(f), 6, 7, 9, 10 7 and 11(d9(b) shall remain in effecthereof.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- respective obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction each of the following conditions prior to or concurrently with such purchaseterms and conditions:
(ia) All At the time of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date execution of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (no order or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or nor any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company or any Guarantor, be contemplated. No order suspending the sale of the Notes in any jurisdiction shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of either the Company or any Guarantor, shall be contemplated.
(b) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing Date that the Offering Memorandum (taken together with the Incorporated Documents) or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx, counsel 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, in the light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the other Operative Documents, the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Irell & Xxxxxxx LLP shall have furnished to the Initial Purchasers, its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum and is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction listed on a schedule to the opinion;
(ii) Each Guarantor is an entity duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization with full corporate, limited liability company or partnership, as applicable, power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum and is duly registered and qualified to conduct its business and is in good standing as a foreign corporation, partnership or other entity in each jurisdiction listed on a schedule to the opinion;
(iii) The Company has the corporate power and authority to enter into this Agreement and the other Operative Documents and to issue, sell and deliver the Notes to be sold by it to the Initial Purchasers as provided herein, and this Agreement and each of the other Operative Documents (other than the Notes) have been duly authorized, executed and delivered by the Company and such Operative Documents (other than this Agreement) are valid and legally binding agreements of the Company, enforceable against the Company in accordance with their respective terms;
(iv) As Each Guarantor has the corporate, limited liability company or partnership, as applicable, power and authority to enter into this Agreement and the other Operative Documents, and this Agreement and each of September 30the other applicable Operative Documents (other than the Guarantees) have been duly authorized, 2001executed and delivered by each Guarantor and such Operative Documents (other than this Agreement) is valid and legally binding agreement of each Guarantor, neither enforceable against each Guarantor in accordance with its respective terms;
(v) The Notes have been duly authorized, executed and issued by the Company nor any Subsidiary had any material liabilities or obligationsand, direct or contingentassuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, that were not set forth will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the Company's consolidated balance sheet as benefits of such date or in the notes thereto set forth Indenture; and the Notes, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum. Since September 30Memorandum in all material respects.
(vi) The Guarantees have been duly authorized and executed by the respective Guarantors and, 2001assuming due authentication of the Notes by the Trustee, except upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Guarantors enforceable in accordance with their terms.
(vii) (x) The offer, sale or delivery of the Notes as set forth of the Closing Date, and (y) the execution, delivery and performance by the Company and the Guarantors of this Agreement and the other Operative Documents, and (z) compliance by the Company and the Guarantors with the provisions hereof or thereof and consummation by the Company and the Guarantors of the transactions contemplated in the Offering Memorandumhereby or thereby, do not and will not violate and do not and will not constitute a breach of, or a default under (including any event which, with notice or lapse of time or both, would be a breach of or a default under), (a) neither the certificate or articles of incorporation or partnership or membership agreement or bylaws or other organizational documents of the Company nor or any Subsidiary has of its subsidiaries as in effect on the Closing Date or (1b) incurred any liabilities agreement or obligationsinstrument listed under Items 4 or 10 in the exhibit index to the Company's 1997 Form 10-K or in the exhibit index to the Company's subsequently filed Forms 10-Q as in effect on the Closing Date, direct except, with respect to this clause (b) any such violation, breach or contingentdefault that could not, that would singly or in the aggregate, with all such other violations, breaches and defaults, reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not ; and other than as described in the ordinary course Offering Memorandum, and, based solely on facts known to such counsel, no such action will result in any violation of business, (b) there has not been any event Law or development Legal Requirement in respect effect as of the business Closing Date which in such counsel's experience is customarily applicable to transactions of the type contemplated by the Operative Documents (assuming for the purposes of this paragraph compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Securities Act, the Exchange Act and the 1939 Act);
(viii) No Consent or condition Filing based on Law or Legal Requirements (financial including California Gaming Laws) as in effect on the Closing Date which in such counsel's experience is customarily applicable to transactions of the type contemplated by the Operative Documents is required on the part of the Company or other) any of its subsidiaries for the valid issuance and sale of the Notes to the Initial Purchasers as contemplated by this Agreement or the execution, delivery or performance by the Company and the Subsidiaries thatGuarantors of each of the Operative Documents, either individually to which each is a party, except (A) as have been obtained and are in full force and effect, (B) as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Notes or such as may be required under the Securities Act, the Exchange Act or the 1939 Act in connection with the performance by the Company of its obligations under the Registration Rights Agreement and (C) as may be required by applicable Gaming Laws and Gaming Authorities in connection with the registration, sale and issuance of the Series B Notes and any Guarantees thereof, as to which such counsel need not express an opinion;
(ix) To the knowledge of such counsel, there are no legal or governmental proceedings pending or threatened against the Company or any of its subsidiaries, or to which the Company or any of its subsidiaries or any of their respective property or assets is subject, which are not disclosed in the Offering Memorandum or the Incorporated Documents and which could, singly or in the aggregateaggregate with all other such proceedings, would reasonably be expected to have a Material Adverse Effect or materially adversely affect the consummation of the transactions contemplated by the Operative Documents;
(x) To such counsel's knowledge, there are no contracts or documents of a character required by the Securities Act or by the rules and regulations thereunder to be described in a prospectus included in a registration statement on Form S-1 which are not described in the Offering Memorandum or the Incorporated Documents (cother than certain contracts or documents required by Item 402 of Regulation S-K under the Securities Act);
(xi) there has been The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions are true and accurate in all material respects and summarize fairly the information required to be shown in all material respects, except statements of law or legal conclusions in the section entitled "Business" under the heading "Regulation and Licensing" that address jurisdictions other than California, as to which such counsel need express no dividend or distribution opinion;
(xii) Except as described in the Offering Memorandum, to the knowledge of such counsel, no holder of any kind declared, paid securities of the Company (except for the holders of the Notes) or made any other person has the right to have any securities of the Company included in any registration statement contemplated by the Company on any class of its capital stock.Registration Rights Agreement;
(vxiii) The No registration of any of the Notes under the Securities Act is required for the sale of the Notes to the Initial Purchasers shall have received certificatesas contemplated in this Agreement or for the Exempt Resales (assuming (A) that each Initial Purchaser is a Qualified Institutional Buyer, dated (B) that any person who buys the Closing DateNotes in the Exempt Resales is an Eligible Purchaser, signed by two authorized officers (C) the accuracy of each the Initial Purchasers' representations in this Agreement, (D) the accuracy of the representations of the Company and the Guarantors confirmingin this Agreement regarding the absence of general solicitation in connection with the Exempt Resales and (E) the accuracy of the representations made by, and in compliance with the agreements made by, all purchasers under the terms set forth in the Offering Memorandum under the caption "Notice to Investors");
(xiv) Except for issuances of Notes pursuant to the Registered Exchange Offer, as defined in the Indenture, no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Notes contemplated hereby or in connection with the Exempt Resales;
(xv) Assuming that the proceeds of issuance of the Notes are used as set forth in the Offering Memorandum, neither the consummation of the transactions contemplated hereby nor the sale, issuance, execution or delivery of the Notes, nor the application of the proceeds therefrom (if applied as described in the Offering Memorandum under the caption "Use of Proceeds"), will violate Regulation T (12 C.F.R. Part 220), U (12 C.F.R. Part 221) or X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System; Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated the Closing Date to the effect that in the course of the preparation by the Company of the Offering Memorandum, such counsel participated in conferences with certain officers and employees of the Company, representatives of Xxxxxx Xxxxxxxx LLP and representatives of the Initial Purchasers and their counsel at which the contents of the Offering Memorandum and related matters were discussed and, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated in the Offering Memorandum, no facts have come to such counsel's attention that lead it to believe that the Offering Memorandum (and the Incorporated Documents), as of its date and as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to their knowledgestate a material fact required to be stated therein or necessary to make the statements therein, in light of the matters circumstances under which they were made, not misleading. Such counsel need not assume any responsibility for or independently verify the accuracy, completeness or fairness of the financial statements and schedules and other financial data included or incorporated in the Offering Memorandum and need express no view as to the accounting or financial records from which such financial statements, schedules and data are derived. In rendering such opinion, such counsel will state that, except as set forth in paragraphs the next sentence, its opinions are limited to, and do not express any opinion as to any laws other than, the Federal Law of the United States, the laws of the State of California, and the General Corporation Law of the State of Delaware, in each case as in effect on the date thereof. Notwithstanding the foregoing, (iA) the opinions in Paragraphs (iii), (iiiv), (iiiv) and (vi) above relating to the enforceability of the agreements named therein may be limited to, and such counsel need not express any opinion as to such matters under any laws other than, the laws of the State of New York as in effect on the date thereof, (B) the opinions in Paragraphs (iii), (iv), (v) and (vi) above relating to the valid and legally binding nature of this Section 8the agreements named therein on the entities executing the same (as distinguished from the enforceability of such agreements) shall also be expressed as to the laws of the State of New York as in effect on the date thereof and (C) the term "Law and Legal Requirements" as used in Paragraph (vii) above shall include the laws of the State of New York as in effect on the date thereof.
(vie) The Company shall have received from the lenders under the Bank Credit Facility all consents, waivers and authorizations necessary for the consummation of the transactions contemplated hereby, in form and substance reasonably satisfactory to the Initial Purchasers.
(f) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Companyfollowing opinions, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request respect to enable them to review or pass upon the certain gaming matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects matters of any of the representations, warranties or conditions contained in this Agreement.local law:
(xviiii) The Original Notes shall be eligible Opinion of Xxxxxxx Xxxxxx, gaming counsel for trading the Company and the Guarantors in the Portal market upon issuance.State of Nevada;
(xixii) All agreements set forth Opinion of Xxxxx Xxxxxx, gaming counsel for the Company and the Guarantors in the representation letter State of the Issuers to DTC relating to the approval Louisiana;
(iii) Opinion of the Notes by DTC Xxxxxxx Xxxxxx Winter & Stennis, P.A., gaming counsel for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to and the Closing DateGuarantors in the State of Mississippi;
(iv) Opinion of Xxxxxxxx, Xxxxxxx & Salmon, P.L.C., counsel for the Company and such termination shall be without liability the Guarantors in the State of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.Arizona;
Appears in 1 contract
Samples: Purchase Agreement (Switzerland County Development Corp)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers and the Guarantors shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Issuers, certifying as to the foregoing and to the effect in Section 8(c);
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.;
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt of the Issuers or order shall have been enacted, adopted or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.possible change;
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Fulbright and Xxxxxxxx & Xxxxxx L.L.P.LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for Issuers and the Company, Guarantors and (Cii) Xxxxxxx Xxxxxx X. XxxxxXxXxxxxxx, general counsel for of the Company Issuers and the Guarantors, substantially in the form of Exhibits X-0, X-0 Annex II(b) and ------------ --- A-3, respectively, --- Annex II(c) attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.hereto;
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representatives. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.;
(xviiif) The Original Notes Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof;
(g) The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof;
(h) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Partnership, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Partnership, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers;
(i) The Initial Purchasers shall have received on and as of the date hereof a certificate of the chief financial officer of the Partnership that is reasonably satisfactory to the Representatives with respect to certain financial information contained in the Portal market upon issuance.Preliminary Offering Memorandum and the Final Offering Memorandum;
(xixi) Neither the Partnership nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum, and (ii) since the respective dates as of which information is given in the Offering Memorandum there shall not have been any change in the capital stock or long-term debt of the Partnership or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, partners’ or stockholders’ equity or results of operations of the Partnership or any of its Subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Offering Memorandum;
(k) The Initial Purchasers shall have been furnished with written instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request; and
(l) All agreements set forth in the blanket representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Issuers at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, counsel to the IssuersCompany, (Bii) Jenkens & XxxxxxxxxXxxxx X. Xxx, a professional corporation, special regulatory general counsel for of the Company, (iii) Xxxxxx and Xxxxxx, local counsel to the Company in the Cayman Islands and (Civ) Xxxxxxx X. XxxxxXxxxxx and Xxxxxx, general counsel for to the Company Company, substantially in the form of Exhibits X-0B 1, X-0 B-2, B 3 and ------------ --- A-3, respectively, --- B-4 attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representatives. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received “comfort letters” from (x) Ernst & Young LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering certain of the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement and (y) Xxxxx Xxxxxxxx LLP, the former independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering certain of the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchaser shall have received a “bring down comfort letter” from each of Ernst & Young LLP and Xxxxx Xxxxxxxx LLP, each dated as of the Closing Date, addressed to the Initial Purchasers and addressing the matters in the “comfort letter” delivered on the date hereof pursuant to clauses (x) and (y), respectively, of the preceding sentence, except that (i) each “bring-down comfort letter” shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceInitial Purchasers and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have executed and delivered the Indenture and the Security Documents and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) In accordance with the terms of the Indenture, the Initial Purchasers and the Trustee shall have received (or, in the case of possessory Collateral, such documents shall be in the possession of the Bank Collateral Agent in accordance with the terms of the Intercreditor Agreement) each of the documents set forth on Annex B hereto which shall be reasonably satisfactory in form and substance to the Initial Purchasers, the Trustee and each of their respective counsel with respect to the Collateral, as appropriate, and shall have taken the actions set forth on Annex B hereto:
(i) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(j) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "book-“book entry" ” transfer shall have been complied with.
(k) The Trustee, as Collateral Agent, shall have entered into the intercreditor agreement (the “Intercreditor Agreement”) among the Trustee, UBS AG, Stamford Branch, as bank collateral agent, the Company and each Guarantor, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(l) Wilmington Trust Company, as mortgage trustee for the benefit of the Collateral Agent on behalf of the holders of the Notes (the “Mortgage Trustee”), shall have entered into the mortgage trust agreement (the “Mortgage Trust Agreement”) between the Mortgage Trustee and the Collateral Agent, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers and the Guarantors shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Issuers, certifying as to the foregoing and to the effect in Section 8(c);
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.;
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt of the Issuers or order shall have been enacted, adopted or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.possible change;
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Fulbright and Xxxxxxxx & Xxxxxx L.L.P.LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for Issuers and the Company, Guarantors and (Cii) Xxxxxxx Xxxxxx X. XxxxxXxXxxxxxx, general counsel for of the Company Issuers and the Guarantors, substantially in the form of Exhibits X-0, X-0 Annex II(b) and ------------ --- A-3, respectively, --- Annex II(c) attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.hereto;
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.;
(xviiif) The Original Notes Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof;
(g) The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof;
(h) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Partnership, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Partnership, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representative and counsel to the Initial Purchasers;
(i) The Initial Purchasers shall have received on and as of the date hereof a certificate of the chief financial officer of the Partnership that is reasonably satisfactory to the Representative with respect to certain financial information contained in the Portal market upon issuance.Preliminary Offering Memorandum and the Final Offering Memorandum;
(xixj) The Initial Purchasers shall have been furnished with written instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request; and
(k) All agreements set forth in the blanket representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Issuers at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the several Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct, Section 1 hereof or true and correct in all material respects where such representations and warranties are not qualified by materiality certificates of any officer of the Company or Material Adverse Effect, on any of the Subsidiaries delivered pursuant to the provisions hereof as of the date of this Agreement andand the Closing Time, in each case after giving effect to the transactions contemplated herebyperformance by the Company of its covenants and other obligations hereunder, on and to the following further conditions:
(a) At the Closing DateTime, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers the Representatives shall have performed or complied with all of received the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) No action shall have been taken and no statutefavorable opinion, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, dated as of the Closing DateTime, prevent of Pepper, Xxxxxxxx & Xxxxxxx LLP, counsel for the issuance Company, in form and substance satisfactory to counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for each of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting orother Initial Purchasers, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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 issuedeffect substantially set forth in Exhibit A hereto.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of At the business or condition (financial or other) of Closing Time, the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers Representatives shall have received certificatesthe favorable opinion, dated the Closing Date, of Xxxxxxx, Xxxx & Xxxxxxxxx, environmental counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers, together with signed by two authorized officers or reproduced copies of such letter for each of the Company and other Initial Purchasers, to the Guarantors confirmingeffect substantially set forth in Exhibit B hereto.
(c) At the Closing Time, the Representatives shall have received the favorable opinion, dated as of the Closing DateTime, of Scopelitis, Garvin, Light & Xxxxxx, regulatory counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for each of the other Initial Purchasers, to their knowledgethe effect substantially set forth in Exhibit C hereto.
(d) At the Closing Time, the Representatives shall have received the favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for each of the other Initial Purchasers, with respect to the matters set forth in paragraphs (ivii) through (xi), inclusive, and paragraph (iixvii) of Exhibit A hereto. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiaries and certificates of public officials. In addition, such counsel shall additionally state that such counsel has participated in conferences with officers and other representatives of the Company and representatives of the independent accountants for the Company at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon the representations and opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum, at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (iii) it being understood that such counsel need express no comment with respect to the financial statements, including the notes thereto, or any other financial or statistical data found in or derived from the internal accounting or other records of the Company and (iv) of this Section 8the Subsidiaries set forth or referred to in the Offering Memorandum).
(vie) The Initial Purchasers shall have received on At the Closing Date opinions dated Time, there shall not have been, since the Closing Datedate hereof or since the respective dates as of which information is given in the Offering Memorandum, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Companyany Material Adverse Change, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers Representatives shall have received a "comfort letter" from PricewaterhouseCoopers LLP certificate of the President or a Vice President of the Company and Xxxxxx Xxxxxxxx LLP, independent public accountants for of the chief financial or chief accounting officer of the Company, dated as of the date Closing Time, to the effect that (i) there has been no such Material Adverse Change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, and (iii) 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 Time.
(f) At the time of the execution of this Agreement, addressed to the Initial Purchasers and Representatives shall have received from Xxxxxx Xxxxxxxx LLP a letter dated such date, in form and substance satisfactory to the Initial Purchasers Representatives and counsel to for the Initial Purchasers. In addition, together with signed or reproduced copies of such letter for each of the other Initial Purchasers, containing statements and information of the type ordinarily included in accountants' "comfort letters" to Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(g) At the Closing Time, the Initial Purchasers Representatives shall have received from Xxxxxx Xxxxxxxx LLP a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing DateTime, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers Representatives and counsel to for the Initial Purchasers, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(ixh) Each At the Closing Time, the Securities shall be rated at least B2 by Moody's and B by S&P, and the Company shall have delivered to the Representatives a letter dated the Closing Time, from each such rating agency, or other evidence satisfactory to the Representatives, confirming that the Securities have such ratings; and since the date of this Agreement, there shall not have occurred any downgrading in the rating assigned to the Securities or any of the Issuers Company's other securities by any nationally recognized securities rating agency, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other securities.
(i) At the Closing Time, the Securities shall have been designated for trading on PORTAL.
(j) The Company and the Trustee shall have entered into the Indenture Indenture.
(k) The Company and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received certificates, dated the Closing Date, (i) signed by any combination of two of the chairman of the board of directors, chief executive officer, chief financial officer and general counsel of each of XM Holdings and the Company and (ii) signed by any combination of two of the chairman of the board of directors, chief executive officer, chief financial officer and general counsel of Sirius, in each case certifying as to the foregoing and to the effect in Section 8(c), among other matters.
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or, to XM Holdings’s or Sirius’s knowledge, threatened.
(iiic) Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt or preferred stock of XM Holdings, the Company or any XM Subsidiary by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(d) No action event or condition of a type described in Section 5(a)(xviii) or 5(b)(xvi) hereof shall have been taken and no statuteoccurred or shall exist, rule, regulation which event or order shall have been enacted, adopted or issued by any governmental agency that would, as condition is not described in each of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or Pricing Disclosure Package (excluding any amendment or supplement thereto, ) and the Final Offering Memorandum (excluding any amendment or any order asserting that any supplement thereto) the effect of which in the judgment of the transactions Initial Purchasers makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement are subject to Agreement, the registration requirements of Pricing Disclosure Package and the Act shall have been issuedFinal Offering Memorandum.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vie) The Initial Purchasers shall have received on the Closing Date opinions (i) an opinion and negative assurance letter each dated the Closing Date, addressed to the Initial Purchasers, of (A) - 33 - Skadden, Arps, Slate, Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit B-1 attached hereto, X-0 (ii) an opinion and ------------ --- A-3negative assurance letter each dated the Closing Date, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel addressed to the Initial Purchasers, of Xxxxx & Xxxxxxx L.L.P., regarding regulatory and certain corporate matters, substantially in the form of Exhibit B-2 attached hereto, (iii) an opinion and negative assurance letter each dated the Closing Date, addressed to the Initial Purchasers, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to Sirius, substantially in the form of Exhibit B-3 attached hereto and (iv) an opinion dated the Closing Date, addressed to the Initial Purchasers, of Xxxxx Xxxx LLP, regarding regulatory matters, substantially in the form of Exhibit B-4 attached hereto.
(viif) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) negative assurance letter dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Such counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiig) On the date hereof, the Initial Purchasers shall have received (i) a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package and (ii) a “comfort letter” from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Final Offering Memorandum. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(h) On the date hereof, the Initial Purchasers shall have received (i) a “comfort letter” from the independent public accountants for Sirius, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package and (ii) a “comfort letter” from the independent public accountants for Sirus, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, covering the financial and accounting information in the Final Offering Memorandum. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for Sirius, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(i) The Original Notes Company and the Guarantors and Sirius and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Company and Sirius shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received copies thereof.
(j) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(k) The Initial Purchasers shall assist the Issuers in arranging for Portal trading and the Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Exchangeable Notes by DTC for "“book-entry" ” transfer shall have been complied with.
(l) Sirius shall have submitted an application for the listing of the Underlying Securities and such application shall have been approved by The Nasdaq Stock Market, subject only to notice of issuance.
(m) On the date hereof, the Initial Purchasers shall have received a Certification from Xxxxx X. Xxxxx, Executive Vice President and Chief Financial Officer of Sirius (the “CFO Certification”) regarding certain financial information contained in the Pricing Disclosure Package in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, dated the date of this Agreement. In addition, on the Closing Date the Initial Purchasers shall have received a bring-down certificate of the CFO Certification dated the Closing Date in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers (n) (i) Sirius, Xxxxxx Xxxxxxx Capital Services, Inc. and UBS AG, London Branch shall have executed and delivered the Share Lending Agreements and Sirius and the Company shall have executed and delivered the Common Stock Delivery Agreement and the Initial Purchasers shall have received copies thereof and (ii) Sirius shall have made the initial delivery of borrowed shares to the share borrowers pursuant to the Share Lending Agreements.
(o) The Company and the Guarantors and Sirius and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof
(p) The Merger shall have been consummated and the Initial Purchasers and counsel to the Initial Purchasers shall have received evidence of such consummation. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers Issuer and the Guarantors contained in this Agreement shall be true and correctcorrect in all material respects (other than those representations and warranties that are qualified as to materiality or “Material Adverse Effect”, or which shall be true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, respects) on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers Issuer and the Guarantors shall have performed or complied in all material respects with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, certifying as to the foregoing and to the effect in Section 9(c) hereof.
(iib) The Final Offering Memorandum Circular shall have been printed and copies distributed to the Initial Purchasers on the second business day immediately following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Subsequent to the execution and delivery of this Agreement, there shall not have been taken and no statute, rule, regulation occurred any downgrading in the rating of any debt securities of the Issuer or order shall have been enacted, adopted or issued any Guarantor by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumRule 436(g)), or any amendment public announcement that any such organization has under surveillance or supplement thereto, review its rating of any debt securities of the Issuer or any order asserting that any Guarantor (other than an announcement with positive implications of the transactions contemplated by this Agreement are subject to the registration requirements a possible upgrading, and no implication of the Act shall have been issueda possible downgrading, of such rating).
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ax) Xxxxxxx Ropes & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Gxxx LLP, counsel to the IssuersIssuer and Guarantors incorporated in Delaware, (B) Jenkens & XxxxxxxxxNew York and California, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- Exhibit B-1 attached hereto with such changes as are reasonably agreed by such counsel and the Initial Purchasers, (y) counsel of the Guarantors incorporated in the states other than Delaware, New York and California, substantially in the form of Exhibit B-2 attached hereto with such changes as are reasonably agreed by such counsel and substance reasonably satisfactory to the Initial Purchasers and (z) Kxxxx X. Xxxxxxxx, general counsel to of the Issuer, substantially in the form of Exhibit B-3 attached hereto with such changes as are reasonably agreed by such counsel and the Initial Purchasers.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Cxxxxx Xxxxxx & XxxxxxxRxxxxxx llp, counsel to the Initial Purchasers, in form and substance satisfactory to the Representative. Such counsel shall have been furnished with such certificates and documents as they may reasonably request to enable 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 contained in this Agreement.
(viiif) The Initial Purchasers shall have received a "“comfort letter" ” from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx Ernst & Young LLP, independent registered public accountants accounting firm for the CompanyIssuer, dated the date of this Agreement, addressed to the Initial Purchasers and substantially in the form most recently provided to the Initial Purchasers, and otherwise in form and substance reasonably satisfactory to the Representative and counsel to the Initial Purchasers on the date of this Agreement, containing excerpts from the General Disclosure Package indicating the procedures performed by Ernst & Young LLP on the financial data included therein in form and substance satisfactory to the Initial Purchasers Representative and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "“bring-down comfort letter" ” from PricewaterhouseCoopers Ernst & Young LLP, dated as of the Closing Date, containing excerpts from the Final Offering Circular indicating the procedures performed by Ernst & Young LLP on the financial data included therein, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Initial Purchasers Representative and counsel to the Initial Purchasers.
(ixg) Each of The Issuer, the Issuers Guarantors and the Trustee shall have entered into executed and delivered the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, copies thereof.
(x) Each of . The Issuer and the Issuers Guarantors shall have entered into executed and delivered the Credit Facilities Registration Rights Agreement, in form and each of substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received counterparts, conformed as executed, executed counterparts thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvih) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it they may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xixi) All agreements set forth in the blanket representation letter of the Issuers Issuer to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) 9 shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Issuer at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 9 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Nortek Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction (or waiver by the Initial Purchasers in their sole discretion) of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt or preferred stock of either Issuer or any Subsidiary by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any notice given or public announcement of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, or that such organization has under surveillance or review, with possible negative implications, its rating of any debt or preferred stock of either Issuer.
(d) The Initial Purchasers shall have been taken and no statutereceived certificates from each Issuer, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of dated the Closing Date, prevent signed by the issuance chief executive officer and chief financial officer of the Original Notes or consummation respective Issuer, certifying as to the matters set forth in paragraphs (a), (b) (with respect to the second sentence), (c) and (e) of this Section 8 and as to such other matters as the Initial Purchasers may reasonably request.
(i) Neither Parent nor any Subsidiary shall have sustained since the date of the Exchange Offer; except latest audited financial statements included in the Offering Memorandum any loss or interference with their respective business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed set forth in or contemplated by the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to (ii) since the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet respective dates as of such date or in the notes thereto set forth which information is given in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to Memorandum there shall not have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business business, general affairs, management, prospects or condition (financial or other) of the Company and the Subsidiaries that, either individually Parent or any Subsidiary nor any change in the aggregatecapital stock or long-term debt of Parent or any Subsidiary, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, otherwise than as of the Closing Date, to their knowledge, the matters set forth in paragraphs or contemplated by the Offering Memorandum, the effect of which, in any such case described in clause (i), ) or (ii), (iii) is in the judgment of the Representative so material and (iv) adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in this Section 8.Agreement and in the Offering Memorandum;
(vif) The Initial Purchasers shall have received on the Closing Date (i) opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ax) Xxxxxxx Alston & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Bird LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (Cy) Xxxxxxx X. Xxxxx, txx xxxeral counsel or assistant general counsel for the Company of Parent, substantially in the form of Exhibits X-0B-1 and B-2 attached hereto, X-0 and ------------ --- A-3, respectively, --- attached hereto and (ii) copies of any opinions delivered in connection with any of the other Transactions together with reliance letters relating to such opinions in form and substance reasonably satisfactory to the Initial Purchasers Representative and counsel to the Initial Purchasers.
(viig) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx Skadden, Arps, Slate, Meagher & XxxxxxxFlom LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP Purchaserx, xx xorm and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance subsxxxxe satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiih) On the date hereof, the Initial Purchasers shall have received a "comfort letter" from KPMG LLP, the independent public accountants for Parent, and Deloitte & Touche LLP, the former independent public accountants for Parent, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers (it being understood that if the Offering Memorandum is not printed on the date hereof, such comfort letter shall, on the date hereof, contain excerpts from the Preliminary Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included in the Preliminary Offering Memorandum and that, within twenty-four hours after the Offering Memorandum becomes available in final form (electronically or otherwise), the Initial Purchasers shall receive replacement excerpts from the Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included therein in form and substance satisfactory to the Representative and counsel to the Initial Purchasers). In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from the independent public accountants for Parent, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers.
(i) The Original Notes Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(j) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(k) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes Securities by DTC for "book-entry" transfer shall have been complied with.
(l) Parent shall have received the Requisite Consents (as defined in the Tender Offer Documents) or has discharged the indentures relating to the 11 1/4% Notes and the 12 3/4% Notes.
(m) Each of the other Transactions shall have been, or shall substantially simultaneously be, consummated without any amendment or waiver of any of the Transaction Documents (other than any such amendment or waiver approved by the Representative, such approval not to be unreasonably withheld), and the Initial Purchasers shall have received satisfactory evidence thereof. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Dennys Corp)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied in all material respects with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchaser shall have received a certificate, dated the Closing Date, signed by the Chief Executive Officer, President or an executive vice president and by the chief financial officer of Ispat Inc., Parent and the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers Purchaser on the first day following the date of this Agreement or at such later date as the Initial Purchasers Purchaser may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Issuers or issued any Subsidiary by any governmental agency that would, "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vd) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers Purchaser shall have received on the Closing Date (i) opinions dated the Closing Date, addressed to the Initial PurchasersPurchaser, of (Aa) Xxxxxxx & Xxxxx, MayorXxxxx, DayXxxx and Maw LLP, Xxxxxxxx & Xxxxxx L.L.P., United States counsel to the Issuers, (Bb) Jenkens & XxxxxxxxxXxxx Xxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. XxxxxEsq., general counsel for to Ispat Inc., (c) De Brauw Blackstone Westbroek, Dutch counsel to Parent, (d) Xxxxxxx XxXxxxxx Stirling Scales, Nova Scotia counsel to the Company Issuers, (e) Xxxxxx Xxxxxxx, Canadian counsel to the Issuers, (f) Xxxxxxxx & Sterling LLP, United States counsel to Parent and (g) Xxxxx & Xxxxxxx, special Indiana counsel to Ispat, Inc., substantially in the form of Exhibits X-0B-1 through B-7 attached hereto, X-0 and ------------ --- A-3, respectively, --- attached hereto and (ii) copies of any opinions delivered in connection with any of the other Transactions together with reliance letters relating to such opinions in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersPurchaser.
(viie) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLPPurchaser, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Purchaser. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) On the date hereof, the Initial Purchaser shall have received a "comfort letter" from each of the independent public accountants for any Issuers and parent's other subsidiaries for which financial statements are included in the Offering Memorandum, dated the date of this Agreement, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser (it being understood that if the Offering Memorandum is not printed on the date hereof, such comfort letter shall, on the date hereof, contain excerpts from the Preliminary Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included in the Preliminary Offering Memorandum and that, within twenty-four hours after the Offering Memorandum becomes available in final form (electronically or otherwise), the Initial Purchaser shall receive replacement excerpts from the Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included therein in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser). In addition, the Initial Purchaser shall have received a "bring-down comfort letter" from each of the independent public accountants for the Issuers, dated as of the Closing Date, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.
(g) JPMorgan Chase Bank, BNY Midwest Trust Company, the Related Party Creditors, Ispat Inland Administrative Services Company, GECC, the Issuers, the Trustee and the trustees for the First Mortgage Bonds shall have executed and delivered each of the applicable Transaction Documents and the Initial Purchaser shall have received copies thereof.
(h) The Original Notes Initial Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) The Securities shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with.
(j) The Shareholder Advance Notes shall each have been amended to have a maturity date of at least 91 days after the maturity date of the Original Fixed Rate Notes and shall otherwise be on terms customary for "seller paper."
(k) Each of the other Transactions shall have been, or shall substantially simultaneously be, consummated without any amendment or waiver of any of the Transaction Documents (other than any such amendment or waiver approved by the Initial Purchaser), and the Initial Purchaser shall have received satisfactory evidence thereof.
(l) The Initial Purchaser shall have received evidence of the termination of the CSFB Credit Agreement and shall be satisfied with arrangements for the recording of the Supplement and the filing of the financing statements with respect to the Collateral. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial PurchasersPurchaser), this Agreement may be terminated by the Initial Purchasers Purchaser on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchaser on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be Designated Securities pursuant to the applicable Purchase Agreement are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy of the representations and warranties of the Issuers Company contained in this Agreement Section 1 hereof or in certificates of any officer of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
(A) Subsequent to the execution and delivery of the Purchase Agreement, (i) no downgrading shall be true and correcthave occurred in the rating accorded the Company’s outstanding debt securities or the Designated Securities by Xxxxx’x Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., or true Fitch Ratings, Inc., respectively and correct (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, or changed its outlook, with possible negative implications, with respect to its rating of any of the Company’s debt securities or the Designated Securities.
(B) At the Closing Time, the Representative shall have received the opinion and disclosure letter, dated such date, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, relating to the Designated Securities and substantially to the effect set forth in all material respects where Exhibit A-1 and A-2 hereto.
(C) At the Closing Time, the Representative shall have received the opinion, dated such representations date, of counsel for the Initial Purchasers, relating to the Designated Securities and warranties are not qualified by materiality or Material Adverse Effect, on such other matters as the Representative may reasonably request.
(D) On the date of this the Purchase Agreement and, in each case after giving effect to the transactions contemplated hereby, on and at the Closing DateTime, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificatesfrom (a) PricewaterhouseCoopers LLP, dated the Closing Date, signed or such other firm as may be selected by two authorized officers of each of the Company and as the Guarantors confirmingCompany’s independent registered public accounting firm from time to time, a letter dated as of the Closing Datesuch date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers Representative, containing statements and counsel information of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the Initial Purchasers.
financial statements and certain financial information contained or incorporated by reference in the Time of Sale Information and the Offering Memorandum and (viib) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory PricewaterhouseCoopers LLP, as Hillrom’s independent registered public accounting firm from time to time, a letter dated as of such date, in form and substance reasonably satisfactory to the Initial Purchasers) dated Representative, containing statements and information of the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the Initial Purchasersfinancial statements and certain financial information contained or incorporated by reference in the Time of Sale Information and the Offering Memorandum.
(viiiE) At the Closing Time, there has been no Material Adverse Effect since the date of the Purchase Agreement or since the respective dates as of which information is given in the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) the effect of which is such as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with completion of the offering or the sale of and payment for the Designated Securities; and the Representative shall have received a certificate of the Company, dated the date of the Closing Time and signed by an authorized officer of the Company, to the foregoing effect.
(F) At the Closing Time, the Representative shall have received a certificate of the Company, dated the date of the Closing Time and signed by an authorized officer of the Company, to the effect that the representations and warranties of the Company contained in Section 1 are true and correct (or, with respect to the representations and warranties contained in Section 1 that are not qualified as to materiality, true and correct in all material respects) with the same force and effect as though expressly made at the Closing Time. The officer making such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened.
(G) At the Closing Time, the Designated Securities shall be eligible for clearance and settlement through the facilities of DTC.
(H) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP counterpart of the Registration Rights Agreement that shall have been executed and Xxxxxx Xxxxxxxx LLP, independent public accountants for delivered by a duly authorized officer of the Company, dated .
(I) On the date of this Agreementthe Purchase Agreement and at the Closing Time, addressed the Company shall have furnished to the Initial Purchasers certificates, dated the respective dates of delivery thereof, of its chief financial officer with respect to certain financial data contained in the Time of Sale Information and the Offering Memorandum, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersRepresentatives.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Samples: Debt Securities Purchase Agreement (Baxter International Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreementherein, shall be are subject to satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(ia) All of the representations and warranties of the Issuers Company contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company shall have performed or complied with all of the agreements agreements, or performed all of its obligations and covenants contained in this Agreement and required satisfied all conditions to be complied with, performed or complied with by them satisfied hereunder at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction referred to in Section 6(f) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action None of the issuance and sale of the Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by threatened against the Company or against any governmental agency that would, as of the Closing Date, prevent Initial Purchasers relating to the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no or the other Transaction Documents. No action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge best of the IssuersCompany’s knowledge, threatened against against, the Company and/or or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected expected, individually or in the aggregate, to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Additional Written Offering Communication, the Offering Memorandum, or any amendment or supplement thereto.
(d) Since the respective dates as of which information is given in the Disclosure Package, (i) there shall not have occurred any change, or any order asserting that any of development involving a prospective change, in or affecting the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(iv) As of September 30general affairs, 2001management, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) ), properties, prospects, results of operations, capital stock, or long-term debt, or a material increase in the short-term debt, of the Company or any of the Subsidiaries, not contemplated by the Disclosure Package and the Subsidiaries thatOffering Memorandum that is, either individually or in the aggregatesole judgment of the Representative, would reasonably be expected so material and adverse as to have a Material Adverse Effect make it impracticable or inadvisable to proceed with the offering of the Notes on the terms and in the manner contemplated by the Transaction Documents, (cii) there has been no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of the Subsidiaries on any class of its capital stock, other than as disclosed in the Disclosure Package and the Offering Memorandum, (iii) none of the Company or any of the Subsidiaries shall have incurred any liability or obligation, direct or contingent, that is material, individually or in the aggregate, to the Company and the Subsidiaries, taken as a whole, and that is required to be disclosed on a balance sheet or notes thereto in accordance with U.S. GAAP and is not disclosed on the latest balance sheet or notes thereto included in the Disclosure Package and the Offering Memorandum and (iv) there shall not have occurred any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Disclosure Package or the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, require the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(ve) On or after the date hereof (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization 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.
(f) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(g) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each the chief executive officer and the chief financial officer of the Company Company, in form and substance satisfactory to the Guarantors Representative, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 810 and that, as of such Closing Date, the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder.
(vih) The Initial Purchasers shall have received a certificate, dated the date hereof and the Closing Date, signed by the chief financial officer of the Company, to the effect set forth in Exhibit B hereto.
(i) The Initial Purchasers shall have received on the Closing Date opinions Date:
(i) an opinion and letter, dated the Closing Date, addressed in form and substance satisfactory to the Initial Purchasers, of (A) Xxxxxxx Cadwalader, Wxxxxxxxxx & XxxxxTxxx LLP, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory United States counsel for the Company, to the effect set forth in Exhibit C-1 hereto.
(ii) an opinion, dated the Closing Date, in form and (C) Xxxxxxx X. Xxxxxsubstance satisfactory to the Initial Purchasers, general of Lxxxxx Xxxxxx & Cxxxxxx, the State of Nevada counsel for the Company, to the effect set forth in Exhibit C-2 hereto.
(iii) an opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, of Mxxxxx and Calder, British Virgin Islands counsel for the Company, to the effect set forth in Exhibit C-3 hereto.
(iv) an opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, of C&I Partners, PRC counsel for the Company, addressed to the Company substantially with express consent to the release to the Initial Purchasers, to the effect set forth in Exhibit C-4 hereto.
(v) an opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, of Exhibits X-0King & Wood, X-0 PRC counsel for the Initial Purchasers.
(vi) an opinion and ------------ --- A-3letter, respectivelydated the Closing Date, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and Purchasers, of Shearman & Sterling LLP, counsel to for the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) opinion, dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxDate, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers, of Exxxx, Xxxxxx & Mxxxxx, LLP, counsel for the Trustee. The opinions described in paragraphs (h)(i) through (h)(iv) above shall be rendered to the Initial Purchasers at the request of the Company and counsel shall so state therein.
(j) KPMG and Hxxxxx, Xxxxxxx & Mxxxxxx, P.C. (the “Auditors”), the independent registered public accounting firms for the Company, shall deliver to the Initial Purchasers. In addition, : (i) simultaneously with the Initial Purchasers shall have received execution of this Agreement a "bring-down comfort letter" signed letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, Auditors addressed to the Initial Purchasers and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative and counsel for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the financial statements and certain financial information contained in the Preliminary Offering Memorandum, and (ii) on the Closing Date, a signed letter from the Auditors addressed to the Initial Purchasers and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative and Shearman & Sterling LLP, counsel to for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvik) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes such information, certificates and documents, in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxxaddition to those set forth above, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(l) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company, and the Notes shall have been duly authenticated by the Trustee.
(m) The Notes shall have been approved for trading on The PORTAL Market.
(n) Each of the Transaction Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviiio) The Original All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Transaction Documents and all documents and papers relating thereto shall be eligible reasonably satisfactory to the Initial Purchasers and counsel for trading the Initial Purchasers. The Initial Purchasers and counsel for the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in the Portal market upon issuanceconnection therewith, all in form and substance reasonably satisfactory to them.
(xixp) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at On or prior to the Closing Date, the Initial Purchasers shall have received a lock up agreement substantially in the form attached hereto as Exhibit A signed by the Company’s Officers, Directors and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectthose shareholders listed on Schedule IV hereto.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original Additional Notes, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchaser pursuant to this Section 10 of any material misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Initial Purchaser:
(ia) All of the representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company and each Guarantor shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on their respective parts to be performed or performed, complied with by them or satisfied hereunder at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers Purchaser not later than 10:00 a.m., New York City time, on the day that is two business days following the date of this Agreement or at such later date and time as to which the Initial Purchasers Purchaser may determine. agree.
(c) No stop order suspending the qualification or exemption from qualification of the Original Additional Notes or the Guarantees thereof in any jurisdiction referred to in Section 6(e) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) No action None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by any governmental agency that wouldthreatened against the Company, as of the Closing DateGuarantors, prevent or against the Initial Purchaser relating to the issuance of the Original Notes Securities or consummation of the Exchange Offer; except as disclosed Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no action, suit or proceeding the other Offering Documents. No stop order shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Free Writing Offering Document, 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(ve) The Initial Purchasers Purchaser shall have received certificates, dated the Closing Date, signed by two authorized officers of each the chief executive officer and the chief financial officer of the Company and each Guarantor (in their respective capacities as such), in form and substance reasonably satisfactory to the Guarantors Initial Purchaser, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (ii), (iiib) and (ivc) of this Section 810 and that, as of the Closing Date, the obligations of the Company and such Guarantor, as the case may be, to be performed hereunder on or prior thereto have been duly performed.
(vif) The Initial Purchasers Purchaser shall have received on the Closing Date opinions Date:
(i) an opinion, dated the Closing Date, of Bxxxx Bxxxx, LLP, counsel for the Company and the Guarantors, in the form set forth in Exhibit C hereto.
(ii) an opinion, dated the Closing Date, of Paul, Hastings, Jxxxxxxx & Wxxxxx LLP, federal communication regulatory counsel for the Company and the Guarantors, in the form set forth in Exhibit D hereto.
(iii) an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchaser, of Pxxxxx Bxxxx, LLP, counsel for Royal Street, to the effect set forth in Exhibit E hereto.
(iv) an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, of Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchaser, relating to this Agreement and such other related matters as the Initial Purchaser may require.
(g) Deloitte & Touche LLP, an independent registered public accounting firm for the Company and the Guarantors, shall deliver to the Initial Purchaser three customary “comfort” letters addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto Purchaser and in form and substance reasonably satisfactory to the Initial Purchasers Purchaser and Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchaser, with respect to the Initial Purchasersfinancial statements and certain financial information of Parent and Parent’s subsidiaries contained in the Preliminary Offering Memorandum and the Offering Memorandum and/or incorporated therein by reference as follows: (i) with respect to the Preliminary Offering Memorandum on the date of the Offering Memorandum, (ii) with respect to the Offering Memorandum on the date of the Offering Memorandum and (iii) with respect to the Offering Memorandum on the Closing Date.
(viih) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form Purchaser and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx Lxxxxx & XxxxxxxWxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial PurchasersPurchaser, shall have been furnished with such documents information, certificates and documents, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(i) The Additional Notes and the Guarantees thereof shall have been duly executed and delivered by the Company and the Guarantors, and the Additional Notes shall have been duly authenticated by the Trustee.
(j) The Company, the Guarantors and the Initial Purchaser shall have entered into the Registration Rights Agreement and the Initial Purchaser shall have received counterparts, conformed as executed, thereof, and such agreement shall be in full force and effect.
(k) On or after the date hereof (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, 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 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.
(l) The Notes shall have been approved for trading on The PORTALSM Market.
(m) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xixn) All agreements set forth in the representation letter of the Issuers opinions, certificates, letters, schedules, documents or instruments to DTC relating be delivered pursuant to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 10 by the Company and the Guarantors but not otherwise identified in subsections (a) shall not have been fulfilled through (m) above will be in all material respects when compliance with the provisions hereof only if they are reasonably satisfactory in form and as required by this Agreement substance to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by Purchaser and counsel to the Initial Purchasers on notice to Purchaser. The Company and the Company at any time at or prior to Guarantors shall furnish the Closing DateInitial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such termination quantities as the Initial Purchaser shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectreasonably request.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on and as of the Closing Date, except that if a representation and warranty is made Date as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such datethough then made. The Issuers shall have performed or complied with all of the agreements and covenants and conditions contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiib) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental agency or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Original Notes Securities; and no injunction or consummation order of the Exchange Offer; except as disclosed in the Offering Memorandumany federal, no action, suit state or proceeding foreign court shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official issued that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirmingwould, as of the Closing Date, to their knowledge, prevent the matters set forth in paragraphs (i), (ii), (iii) and (iv) issuance or sale of this Section 8the Securities.
(vic) Since the Applicable Time: (i) there shall not have been any decrease in the rating of any debt or preferred stock of the Company or any Subsidiary by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, and (ii) in the judgment of the Representative, there shall not have occurred any event, change or any development that could, individually or in the aggregate, result in a Material Adverse Effect.
(d) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Knight LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, substantially to the effect set forth in Exhibit A attached hereto, including with respect to Guarantors organized under the laws of the states of Delaware and Texas; (Cii) Xxxxxxx X. Xxxxx, general counsel for to the Company Guarantor organized under the laws of the State of Kansas substantially in the form of Exhibits X-0Exhibit B, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and (iii) counsel to the Initial Purchasers.Guarantor organized under the laws of the State of New Mexico substantially in the form of Exhibit C, and (iv) counsel to the Guarantors organized under the laws of the State of Colorado substantially in the form of Exhibit D.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received a “comfort letter” from KPMG LLP, the independent registered public accounting firm for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent registered public accounting firm for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than three days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceRepresentative and counsel to the Initial Purchasers.
(xixg) The Issuers, the Trustee and the Collateral Agent shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers and the Collateral Agent shall have executed and delivered the Security Agreement, the Collateral Agency Agreement, the ABL Collateral Rights Agreement and any other Security Documents (including, if applicable, short-form intellectual property security agreements) to which they are intended to be a party, and the Initial Purchasers shall have received copies thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval eligibility of the Notes by Securities for clearance and settlement through DTC for "book-entry" transfer shall have been complied with.
(j) The Trustee shall have received (with a copy for the Initial Purchasers):
(i) appropriately completed copies, which have been duly authorized for filing by the appropriate entity, of UCC-1 financing statements, together with (if required by applicable law) all schedules and exhibits to such financing statements, in appropriate form for filing with the Secretary of State (or other authorized governmental authority or office) of the state of location (determined in accordance with Section 9-307 of the Uniform Commercial Code) for such Issuer (“UCC Financing Statements”), covering the Collateral described therein as being covered thereby and naming the Company and each other Issuer as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code in all jurisdictions as may be necessary or, in the reasonable opinion of any of the Collateral Agent, or the Initial Purchasers and their respective counsel, desirable to perfect the Liens of the Collateral Agent pursuant to the Security Documents; such other documents, agreements, contracts, certificates or other written obligations, as the Trustee or the Initial Purchasers or their respective counsel or local counsel may reasonably request as being necessary or appropriate to create and perfect the first priority liens (subject to Permitted Prior Liens) to be granted pursuant to the provisions of the Security Documents;
(ii) termination statements (or copies of authorizations to file termination statements) with respect to filings under the Uniform Commercial Code necessary to release all Liens (other than Permitted Prior Liens) of any person in any Collateral described in the Security Documents previously granted by any person and authorization to file terminations of UCC-1 filings evidencing such Liens;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Trustee, dated a date reasonably near to the Time of Delivery, listing all effective financing statements which name any of the Issuers or any predecessors thereof in the preceding five years (under its present name and any previous names used in the preceding five years) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in the Security Documents, other than such financing statements that evidence Permitted Prior Liens); a completed perfection certificate dated the Closing Date and executed by an authorized officer of the Company, together with all attachments contemplated thereby; copies of tax and judgment lien searches, each dated a date reasonably near to the Time of Delivery listing all lien notices or comparable documents that name any Issuer as debtor and such other searches that the Initial Purchasers deem necessary or appropriate;
(iv) such releases, reconveyances, satisfactions or other instruments as it may request to confirm the release, satisfaction and discharge in full of all mortgages, deeds of trust, security agreements, and other documents creating or evidencing Liens (other than Permitted Prior Liens) at any time delivered by any of the Issuers to secure any of the Issuers’ existing indebtedness that is secured by assets constituting Collateral, duly executed, delivered and acknowledged in recordable form by the grantee named therein or its of record successors or assigns;
(v) documents from each of the lenders under any of the Issuers’ existing indebtedness that is secured by assets constituting Collateral (other than such indebtedness secured by Permitted Prior Liens) indicating the total amount of indebtedness payable to such lender and providing that, upon payment to such lender of the full amount of the indebtedness payable to it, (x) Liens held by such lender shall be automatically released and (y) such lender shall immediately provide all related documentation necessary to evidence such release in form and substance satisfactory to the Collateral Agent and its counsel;
(vi) all certificates or instruments (if any) representing or evidencing the Collateral in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Collateral Agent;
(vii) policies or certificates (or certified copies thereof) with respect to insurance of property, liability insurance and any other insurance maintained by the Issuers and their respective Subsidiaries (x) endorsed for the benefit of the Collateral Agent by naming the Collateral Agent as loss payee and/or additional insured, and (y) providing that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Collateral Agent and the other secured parties, in form and substance reasonably satisfactory to the Initial Purchasers, confirming that all insurance requirements of this Agreement and the Security Documents are satisfied; and
(viii) such other documents, approvals, affidavits, opinions or certificates as the Trustee or the Initial Purchasers may reasonably request in form and substance reasonably satisfactory to the Trustee or the Initial Purchaser, as the case may be.
(k) All UCC Financing Statements and financing statement terminations, required pursuant to clauses (i) and (ii) of paragraph (j) above (collectively, the “Financing Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Trustee (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Trustee, the Initial Purchasers and their respective counsel (i) the Filing Agent’s receipt of all Financing Statements, (ii) that the Financing Statements have been submitted for filing in the appropriate filing offices and (iii) that the Filing Agent will notify the Trustee and its counsel of the results of such submissions within 30 days following the Closing.
(l) The Initial Purchasers shall have received evidence acceptable to the Initial Purchasers of payment or arrangements for payment by the Issuers of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents to be executed and delivered at or prior to the Applicable Time. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other partyparty except as otherwise set forth herein. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers Issuer and the Guarantors contained in this Agreement shall be true and correctcorrect in all material respects (other than those representations and warranties that are qualified as to materiality or “Material Adverse Effect”, or which shall be true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, respects) on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers Issuer and the Guarantors shall have performed or complied in all material respects with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date. The Initial Purchaser shall have received a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, certifying as to the foregoing and to the effect in Section 9(c) hereof.
(iib) The Final Offering Memorandum Circular shall have been printed and copies distributed to the Initial Purchasers Purchaser on the second business day immediately following the date of this Agreement or at such later date as the Initial Purchasers Purchaser may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Subsequent to the execution and delivery of this Agreement, there shall not have been taken and no statute, rule, regulation occurred any downgrading in the rating of any debt securities of the Issuer or order shall have been enacted, adopted or issued any Guarantor by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumRule 436(g)), or any amendment public announcement that any such organization has under surveillance or supplement thereto, review its rating of any debt securities of the Issuer or any order asserting that any Guarantor (other than an announcement with positive implications of the transactions contemplated by this Agreement are subject to the registration requirements a possible upgrading, and no implication of the Act shall have been issueda possible downgrading, of such rating).
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vd) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers Purchaser shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial PurchasersPurchaser, of (Ax) Xxxxxxx Ropes & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Gxxx LLP, counsel to the IssuersIssuer and Guarantors incorporated in Delaware, (B) Jenkens & XxxxxxxxxNew York and California, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- Exhibit B-1 attached hereto with such changes as are reasonably agreed by such counsel and in form and substance reasonably satisfactory to the Initial Purchasers Purchaser, (y) counsel of the Guarantors incorporated in the states other than Delaware, New York and California, substantially in the form of Exhibit B-2 attached hereto with such changes as are reasonably agreed by such counsel to and the Initial PurchasersPurchaser and (z) Kxxxx X. Xxxxxxxx, general counsel of the Issuer, substantially in the form of Exhibit B-3 attached hereto with such changes as are reasonably agreed by such counsel and the Initial Purchaser.
(viie) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Cxxxxx Xxxxxx & XxxxxxxRxxxxxx llp, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLPPurchaser, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Purchaser. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 9 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes Initial Purchaser shall be eligible have received a “comfort letter” from Ernst & Young LLP, independent registered public accounting firm for trading the Issuer, dated the date of this Agreement, addressed to the Initial Purchaser and substantially in the Portal market upon issuanceform most recently provided to the Initial Purchaser, and otherwise in form and substance reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser on the date of this Agreement, containing excerpts from the General Disclosure Package indicating the procedures performed by Ernst & Young LLP on the financial data included therein in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. In addition, the Initial Purchaser shall have received a “bring-down comfort letter” from Ernst & Young LLP, dated as of the Closing Date, containing excerpts from the Final Offering Circular indicating the procedures performed by Ernst & Young LLP on the financial data included therein, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.
(xixg) The Issuer, the Guarantors and the Trustee shall have executed and delivered the Indenture and the Initial Purchaser shall have received copies thereof. The Issuer and the Guarantors shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received executed counterparts thereof.
(h) The Initial Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Issuer to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer shall have been complied with.
(j) The Transactions shall have been consummated, or shall be consummated substantially concurrently with the issuance of the Original Notes, on the terms and conditions described in the General Disclosure Package. If any of the conditions specified in this Section 8 (a) 9 shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial PurchasersPurchaser), this Agreement may be terminated by the Initial Purchasers Purchaser on notice to the Company Issuer at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 9 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchaser on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Nortek Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Initial Notes, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 10 of any material misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Initial Purchasers:
(ia) All of the representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company and each Guarantor shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on their respective parts to be performed or performed, complied with by them or satisfied hereunder at or prior to the Closing Date.
(iib) 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 of this Agreement or at such later date and time as to which the Initial Purchasers may determine. agree.
(c) No stop order suspending the qualification or exemption from qualification of the Original Initial Notes or the Guarantees thereof in any jurisdiction referred to in Section 6(e) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) No action None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by any governmental agency that wouldthreatened against the Company, as of the Closing DateGuarantors, prevent or against the Initial Purchasers relating to the issuance of the Original Notes Securities or consummation of the Exchange Offer; except as disclosed Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no or the other Offering Documents. No action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge best of the IssuersCompany’s and the Guarantors’ knowledge, threatened against the Company and/or against, Parent or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Free Writing Document, 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.
(ive) As Since the respective dates as of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth which information is given in the Company's consolidated balance sheet as Disclosure Package (exclusive of such date any amendment or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in supplement thereto) and the Offering Memorandum, (ai) neither there shall not have occurred any change in or affecting the Company nor any Subsidiary has (1) incurred any liabilities or obligationsgeneral affairs, direct or contingentmanagement, that would reasonably be expected to have a Material Adverse Effectbusiness, financial condition, properties, prospects, results of operations, capital stock, or (2) entered into any long-term debt, or a material transaction not increase in the ordinary course short-term debt, of businessParent or any of the Subsidiaries, not contemplated by the Disclosure Package and the Offering Memorandum that is, in the good faith judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale and delivery of the Securities on the terms and in the manner contemplated by the Offering Documents, (bii) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind shall have been declared, paid or made by Parent or any of the Company Subsidiaries on any class of its capital stock, other than as disclosed in the Disclosure Package and the Offering Memorandum, (iii) none of Parent nor any of the Subsidiaries shall have incurred any liability or obligation, direct or contingent, that is material, individually or in the aggregate, to Parent or the Subsidiaries, taken as a whole, and that is required to be disclosed on a balance sheet or notes thereto in accordance with U.S. GAAP and is not disclosed on the latest balance sheet or notes thereto included in the Disclosure Package and the Offering Memorandum and (iv) there shall not have occurred any event or development relating to or involving Parent or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Disclosure Package or the Offering Memorandum untrue or that, in the opinion of the Company, the Guarantors and their counsel or the Initial Purchasers and its counsel, require the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(vf) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (as defined in the Indenture).
(g) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each the person signing this Agreement on behalf of the Company and each Guarantor, in form and substance reasonably satisfactory to the Guarantors Initial Purchasers, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 810 and that, as of the Closing Date, the obligations of the Company and the Guarantor to be performed hereunder on or prior thereto have been duly performed.
(vih) The Initial Purchasers shall have received on the Closing Date opinions Date:
(i) an opinion, dated the Closing Date, addressed in form and substance satisfactory to the Initial Purchasers and Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchasers, of Jones, Walker, Wxxxxxxx, Poitevent, Carrère & Dxxxxxx, LLP, counsel for the Company and the Guarantors, to the effect set forth in Exhibit D hereto.
(ii) an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, of (A) Xxxxxxx Lxxxxx & XxxxxWxxxxxx LLP, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the CompanyInitial Purchasers, relating to this Agreement and such other related matters as the Initial Purchasers may require.
(Ci) Xxxxxxx X. XxxxxKPMG LLP, general counsel the independent registered public accounting firm for the Company substantially in and the form of Exhibits X-0Guarantors, X-0 and ------------ --- A-3, respectively, --- attached hereto shall deliver to the Initial Purchasers three customary “comfort” letters addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Initial Purchasers and Lxxxxx & Wxxxxxx LLP, counsel for the Initial Purchasers, with respect to the financial statements and certain financial information of Parent and the Subsidiaries contained in the Preliminary Offering Memorandum and the Offering Memorandum and/or incorporated therein by reference as follows: (i) with respect to the Preliminary Offering Memorandum on the date of the Offering Memorandum, (ii) with respect to the Offering Memorandum on the date of the Offering Memorandum and (iii) with respect to the Offering Memorandum on the Closing Date.
(j) D&M shall deliver to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx Lxxxxx & XxxxxxxWxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received , a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, letter addressed to the Initial Purchasers and Purchasers, in form and substance satisfactory to the Initial Purchasers and Lxxxxx & Wxxxxxx LLP, counsel to the Initial Purchasers. In addition, certifying the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated accuracy of the Estimates contained in the Preliminary Offering Memorandum and Offering Memorandum and/or incorporated therein by reference as follows: (i) with respect to the Disclosure Package on the date of this Agreement and (iii) with respect to the Offering Memorandum on the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiik) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx Lxxxxx & XxxxxxxWxxxxxx LLP, counsel to the Initial Purchasers, shall have been furnished with such documents information, certificates and documents, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(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 and the Initial Notes and the Guarantees thereof shall have been duly executed and delivered by the Company and the Guarantors, and the Initial Notes shall have been duly authenticated by the Trustee.
(m) 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, and such agreement shall be in full force and effect.
(n) On or after the date hereof (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any public announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, 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 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.
(o) The Notes shall have been approved for trading on The PORTALSM Market.
(p) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviiiq) The Original All proceedings taken in connection with the issuance of the Initial Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be eligible for trading reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in the Portal market upon issuanceconnection therewith, all in form and substance reasonably satisfactory to them.
(xixr) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as opinions, certificates, letters, schedules, documents or instruments required by this Agreement Section 10 to be fulfilled (or waived 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 counsel to the Initial Purchasers), this Agreement may be terminated by . The Company and the Guarantors shall furnish the Initial Purchasers on notice to such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Company at any time at or prior to the Closing Date, and such termination Initial Purchasers shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectreasonably request.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Initial Notes, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 10 of any material misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Initial Purchasers:
(ia) All of the representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company and each Guarantor shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on their respective parts to be performed or performed, complied with by them or satisfied hereunder at or prior to the Closing Date.
(iib) 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 that is two business days following the date of this Agreement or at such later date and time as to which the Initial Purchasers may determine. agree.
(c) No stop order suspending the qualification or exemption from qualification of the Original Initial Notes or the Guarantees thereof in any jurisdiction referred to in Section 6(e) hereof shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) No action None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Transaction Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by any governmental agency that wouldthreatened against the Company, as of the Closing DateGuarantors, prevent or against the Initial Purchasers relating to the issuance of the Original Notes Securities or consummation of the Exchange Offer; except as disclosed Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no action, suit or proceeding the other Offering Transaction Documents. No stop order shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order issued preventing the use of the Preliminary Offering Memorandum or Memorandum, any Free Writing Offering Document, 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(ve) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each the chief executive officer and the chief financial officer of the Company and each Guarantor (in their respective capacities as such), in form and substance reasonably satisfactory to the Guarantors Initial Purchasers, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (ii), (iiib) and (ivc) of this Section 810 and that, as of the Closing Date, the obligations of the Company and such Guarantor, as the case may be, to be performed hereunder on or prior thereto have been duly performed.
(vif) The Initial Purchasers shall have received on the Closing Date opinions Date:
(i) an opinion, dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and Lxxxxx & Wxxxxxx LLP, counsel to for the Initial Purchasers, of Bxxxx Bxxxx, LLP, counsel for the Company and the Guarantors, to the effect set forth in Exhibit D hereto.
(viiii) The Initial Purchasers shall have received on an opinion, dated the Closing Date an opinion (satisfactory Date, in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Initial Purchasers and Lxxxxx & Wxxxxxx LLP, counsel to for the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers of Paul, Hastings, Jxxxxxxx & Wxxxxx LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of for the Company and the SubsidiariesGuarantors, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements effect set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectExhibit E hereto.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original Notes, as provided for in Senior Subordinated Notes under this Agreement, shall be Agreement are subject to the satisfaction of each of the following conditions prior to or concurrently with such purchasefollowing:
(ia) The Initial Purchaser shall not have discovered and disclosed to the Company and the Guarantors on or prior to such Closing Date that the Preliminary Offering Memorandum or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, 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 the light of the circumstances under which they were made, not misleading.
(b) All of the representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company shall have performed or complied with all of the agreements and covenants herein contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date.
(iic) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers Purchaser not later than 10:00 a.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers Purchaser may determine. No agree, and no stop order suspending the qualification or exemption from qualification of the Original Senior Subordinated Notes in any jurisdiction referred to in Section 6(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiid) 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 which would, as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange OfferSenior Subordinated Notes; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting oror threatened against, to the knowledge of the Issuers, threatened against the Company and/or or any Subsidiary Guarantor before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject which could reasonably be expected to the registration requirements of the Act shall have been issueda Material Adverse Effect.
(ive) As Since the dates as of September 30which information is given in the Offering Memorandum other than as set forth on the Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to this Agreement), 2001(i) there shall not have occurred any events or circumstances that would have any Material Adverse Effect, neither or any development that is reasonably likely to result in a Material Adverse Effect, in the capital stock or the long-term debt, or material increase in the short-term debt, of the Company nor or any Subsidiary had any material liabilities or obligations, direct or contingent, of its Subsidiaries from that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (aii) 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 Subsidiary has (1) of its Subsidiaries shall have incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effectare material, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably to the Company and its Subsidiaries, taken as a whole, and that are required to be expected to 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 a occurred any Material Adverse Effect and in the properties, business, earnings, management, results of operations, condition (c) there has been no dividend financial or distribution otherwise), affairs or prospects of any kind declared, paid or made by the Company on any class of its capital stockCompany.
(vf) The Initial Purchasers Purchaser shall have received certificatesa certificate, dated the Closing Date, signed by two authorized officers of each on behalf of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs by (i)) the Chief Executive Officer, President or any Vice President and (ii), (iii) and (iv) a principal financial or accounting officer of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxPurchaser, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLPconfirming, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed the matters set forth in paragraphs (b), (c), (d) and (e) of this Section 8 and that, as of the Closing Date, the obligations of the Company to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasersbe performed hereunder on or prior thereto have been duly performed.
(ixg) Each All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Issuers shall have entered into Senior Subordinated Notes, the Indenture and each of Subsidiary Guarantees, the Initial Purchasers shall have received copiesIndenture, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement Agreement, the Offering Memorandum, the other Operative Documents and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention all other legal matters relating to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of transactions contemplated hereby and thereby, shall be satisfactory in all material respects to counsel for the Company's obligations hereunder and under the Indenture Initial Purchaser, and the Notes shall be in full force Company and effect.
(xvi) The Initial Purchasers its Subsidiaries shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement to such counsel all documents and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as that they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreementsuch matters.
(xviiih) The Original Notes Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company and the Guarantors, shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating have furnished to the approval of Initial Purchaser its written opinion, as counsel to the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement Company, addressed to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to Purchaser and dated the Closing Date, in the form attached as Exhibit D hereto.
(i) XxXxxxxxx, Will & Xxxxx, counsel to IPB, shall have furnished to the Initial Purchaser its written opinion, as counsel to IPB, addressed to the Initial Purchaser and such termination shall be without liability of any party to any other party. Notwithstanding any such terminationdated the Closing Date, in the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectform attached as Exhibit E hereto.
Appears in 1 contract
Samples: Purchase Agreement (Axiohm Transaction Solutions Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- several obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreementherein, shall be subject to the satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Each Issuer shall have performed or complied with all of the agreements and covenants herein contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 2:00 p.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may determine. No agree, and no stop order suspending the qualification or exemption from qualification of the Original Notes thereof 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.
(iiic) No action shall have been taken with respect to the Issuers or the Manager and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that which would, as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offerthereof; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against against, any of the Company and/or any Subsidiary Issuers or the Manager before any court or arbitrator or any governmental or tribal body, agency or official that would (including, but not limited to, any Gaming Authorities) that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order preventing shall have been issued prevent ing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(d) Since the dates as of which information is given in the Offering Memorandum, (i) there shall not have been any order asserting material adverse change, whether or not arising in the ordinary course of business, or any change or any development that is reasonably likely to result in a material adverse change, in the capital stock, membership units or partnership units, as applicable, or the long-term debt, or material increase in the short-term debt, of any of the transactions contemplated by this Agreement are subject to Issuers or the registration requirements of the Act shall have been issued.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, Manager from that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (aii) neither no dividend or distribution of any kind shall have been declared, paid or made by any of the Company nor Issuers or the Manager on any Subsidiary has class of its capital stock, membership units or partnership units, as applicable and (1iii) none of the Issuers or the Manager shall have incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effectare material, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would to the Issuers, taken as a whole, or the Manager, taken as a whole, respectively, 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, or any development that is reasonably be expected likely to have result in a Material Adverse Effect material adverse change, in the business, prospects, financial condition or results of operation of the Issuers and (c) there has been no dividend or distribution of any kind declaredthe Manager, paid or made by the Company on any class of its capital stocktaken as a whole.
(ve) The Issuers' 12-3/4% Senior Notes due 2003 (the "Senior Notes") tendered pursuant to the tender offer and consent solicitation for the Senior Notes shall have been accepted for purchase by the Issuers in compliance with the Offer to Purchase and Consent Solicitation Statement, as in effect on the date hereof (the "Statement"). The supplemental indenture to the indenture under which the Senior Notes were issued (the "Supplemental Indenture") containing the Proposed Amendments, including the Change of Control Amendment (each, as defined in the Statement) shall have been executed and be effective as of the date hereof. The Officers' Certificate referred to Section 3(b) of the Supplemental Indenture shall have been delivered by each of the Issuers and the Supplemental Indenture shall be operative prior to Closing.
(f) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers on behalf of each of Issuer, in form and substance satisfactory to the Company and the Guarantors Initial Purchasers, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic) and (ivd) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated 8 and that, as of the Closing Date, addressed the obligations of the such Issuer to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasersbe performed hereunder on or prior thereto have been duly performed.
(viig) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers) dated the Closing Date , of Xxxxxx & Xxxxxxx ("Xxxxxx"), special counsel for the Issuers; Xxxxxx & Xxxxxxx, special Indian gaming counsel to the Initial PurchasersIssuers; Rome XxXxxxxx Sabonosh P.C., special Connecticut counsel to the Issuers; and an opinion of Xxxxxx relating to certain tax matters to the effect set forth in Exhibits B-1, B-2, B-3 and B-4, respectively, hereto.
(viiih) The At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Companyaccountants, dated as of the date of this AgreementAgreement and as of the Closing Date, comfort letters addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, for the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as with respect to the financial state ments and certain financial information of the Closing Date, addressed to Issuers contained in the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersOffering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company an opinion, dated the Closing Date as to the solvency of the Company Date, in form and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may substance reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel satisfactory to the Initial Purchasers, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Skadden"), counsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(j) Skadden shall have been furnished with such documents documents, in addition to those set forth above, as they may reasonably request to enable 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 contained in this Agreementherein contained.
(xviiik) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior 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.
(l) The Issuers and the Trustee shall have entered into the Indenture and the Security Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(m) The Notes shall have been approved for trading on PORTAL.
(n) All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Issuers will be in compliance with the provisions hereof only if they are reason ably satisfactory in form and substance to the Initial Purchasers. The Issuers shall furnish the Initial Purchasers with such termination conformed copies of such opinions, certificates, letters and other documents as it shall reasonably request.
(o) On the Closing Date, an amount of the net proceeds from the Offering equal to two semi-annual interest payments on the Notes shall paid directly to the Securities Intermediary (as defined the Security Agreement) to fund the Interest Reserve Account and the Senior Notes shall be without liability accepted for purchase.
(p) All proceeding taken in connection with the sale of any party the Notes as herein contemplated shall be reasonably satisfactory in form and substance to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 Initial Purchasers and 11(d) shall remain in effectto Skadden.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchaser shall have received a certificate, dated the Closing Date, signed by the chief executive officer or president and chief financial officer of the Company, certifying as to the foregoing and to the effect in Sections 6(c) and 6(k).
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers Purchaser on the day following the date of this Agreement or at such later date as the Initial Purchasers Purchaser may reasonably determine. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action shall have been taken Between the time of execution of this Agreement 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 there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of the Original Notes (i) any intended or consummation of the Exchange Offer; except as disclosed potential downgrading or (ii) any surveillance or review or possible change that does not indicate an improvement, in the Offering Memorandumrating accorded any securities of, no actionor guaranteed by, suit Parent or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before by any court or arbitrator or any governmental body, agency or official “nationally recognized statistical rating organization,” as that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing term is defined in Rule 436(g)(2) under the use of the Preliminary Offering Memorandum or 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 issuedAct.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vd) The Initial Purchasers Issuers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, furnish to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on you at the Closing Date opinions dated an opinion of Irell & Xxxxxxx LLP, counsel for the Closing DateIssuers, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company Purchaser substantially in the form of Exhibits X-0Exhibit A hereto, X-0 and ------------ --- A-3, respectively, --- attached hereto dated the Closing Date and in form and substance reasonably satisfactory to Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser.
(e) The Issuers shall furnish to you at the Closing Date an opinion of Xxxxx Xxxx LLP, Arizona counsel to Xxxxxxx Xxxx Southwest, Inc., addressed to the Initial Purchasers Purchaser substantially in the form of Exhibit B hereto, dated the Closing Date and in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to for the Initial PurchasersPurchaser.
(viif) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLPPurchaser, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Purchaser. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 6 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiig) You shall have received from Ernst & Young LLP a letter dated as of the Closing Date and addressed to the Initial Purchaser in the form heretofore approved by you.
(h) The Original Notes Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchaser shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchaser shall have received executed counterparts thereof.
(i) The Initial Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(j) The Securities shall be eligible for trading in the Portal market PORTAL upon issuance.
(xix) . All agreements set forth in the representation letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer shall have been complied with.
(k) Between the time of execution of this Agreement and the Closing Date no material adverse change, financial or otherwise, in the business, assets, properties, prospects, condition or results of operations of Parent and the Subsidiaries, taken as a whole, shall have occurred or become known to the Issuers.
(l) Prior to the Closing Date, the Issuers shall have furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser may reasonably request. If any of the conditions specified in this Section 8 (a) 6 shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial PurchasersPurchaser), this Agreement may be terminated by the Initial Purchasers Purchaser on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 6 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchaser on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandumnationally recognized rating organization, or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx Xxxxx L.L.P., counsel to the IssuersCompany and (ii) Xxxx X. Xxxxxxxx, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory general counsel for of the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 A-1 and ------------ --- A-3, respectively, --- A-2 attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representatives. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received “comfort letters” from each of Ernst & Young LLP and KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering certain of the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchaser shall have received a “bring down comfort letter” from Ernst & Young LLP, dated as of the Closing Date, addressed to the Initial Purchasers and addressing the matters in the “comfort letter” delivered on the date hereof pursuant to the preceding sentence, except that (i) the “bring-down comfort letter” shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceInitial Purchasers and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have executed and delivered the Indenture, to which it is a party, and the Initial Purchasers shall have received copies thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company to DTC relating to the approval of the Notes by DTC for "book-“book entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Initial Notes, as provided for in this Agreementherein, shall be are subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers pursuant to this Section 10 of any misstatement or omissions and to the satisfaction of the following additional conditions prior to or concurrently with such purchaseunless waived in writing by the Initial Purchasers:
(ia) All of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Company shall have performed or complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on their respective parts to be performed or performed, complied with by them or satisfied hereunder at or prior to the Closing Date.
(iii) 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 of this Agreement or at such later date and time as to which the Initial Purchasers may determine. No agree, and (ii) no stop order suspending the qualification or exemption from qualification of the Original Initial Notes in any jurisdiction referred to in Section 2(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action None of the issuance and sale of the Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall have been taken be enjoined (temporarily or permanently) and no statute, rule, regulation restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, rule, regulation, decree or other administrative proceeding enacted, adopted instituted, adopted, issued or issued by any governmental agency that would, as of threatened against the Closing Date, prevent Company or against the Initial Purchasers relating to the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, no or the other Offering Documents. No action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the IssuersCompany, threatened against against, the Company and/or or any Subsidiary of its subsidiaries before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto.
(d) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), (i) there shall not have occurred any change, or any order asserting that any of development involving a prospective change, in or affecting the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(iv) As of September 30general affairs, 2001management, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) ), properties, prospects, results of operations, capital stock, or long-term debt, or a material increase in the short-term debt, of the Company and or any of its subsidiaries, not contemplated by the Subsidiaries thatOffering Memorandum that is, either individually or in the aggregatejudgment of the Initial Purchasers, would reasonably be expected so material and adverse as to have a Material Adverse Effect make it impracticable or inadvisable to proceed with the offering of the Initial Notes on the terms and in the manner contemplated by the Offering Documents, (cii) there has been 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, (iii) none of the Company or any of its subsidiaries shall have incurred any liability or obligation, direct or contingent, that is material, individually or in the aggregate, to the Company and its subsidiaries, taken as a whole, and that is required to be disclosed on a balance sheet or notes thereto in accordance with GAAP and is not disclosed on the latest balance sheet or notes thereto included in the Offering Memorandum, and (iv) there shall not have occurred any event or development relating to or involving the Company or any of its subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that, in the opinion of the Company and their counsel or the Initial Purchasers and its counsel, require the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation required to be stated therein or necessary in order to make the statements made therein not misleading.
(ve) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (as defined in the Indenture).
(f) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each the chief executive officer and the chief financial officer of the Company (in their respective capacities as such), in form and substance satisfactory to the Guarantors Initial Purchasers, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib)(ii), (iiic), (d) and (ive) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated 10 and that, as of the Closing Date, addressed to the Initial Purchasers, obligations of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasersbe performed hereunder on or prior thereto have been duly performed.
(viig) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers) dated the Closing Date of Xxxxxx Purchasers and Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to for the Initial Purchasers, of Hunton & Xxxxxxxx LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(viiih) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP on the Closing Date an opinion, dated the Closing Date, in form and Xxxxxx substance satisfactory to the Initial Purchasers and Latham & Xxxxxxx LLP, counsel for the Initial Purchasers, of Xxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company, to the effect set forth in Exhibit D hereto.
(i) The Initial Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, of Xxxx XxXxxxxxx, Esq., general counsel for the Company, to the effect set forth in Exhibit E hereto.
(j) At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received from KPMG LLP, independent registered public accountants for the Company, dated as of the date of this AgreementAgreement 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 Xxxxxx & Xxxxxxx LLP, counsel to for the Initial Purchasers. In addition, with respect to the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as financial statements and certain financial information of the Closing Date, addressed to Company and its subsidiaries contained in the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersOffering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiik) The Initial Purchasers shall have received on the Closing Date a certificate from the Company an opinion, dated the Closing Date as to the solvency of the Company Date, in form and the Subsidiaries, addressed substance reasonably satisfactory to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies , of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions Xxxxxx & Xxxxxxx LLP, counsel for the application of the proceeds of the Original Notes in accordance with Initial Purchasers, relating to this Agreement and such other information related matters as it the Initial Purchasers may reasonably requestrequire.
(xviil) Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers, shall have been furnished with such documents documents, in addition to those set forth above, as they may reasonably request to enable require for the purpose of enabling them to review or pass upon the matters referred to in this Section 8 10 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained herein contained.
(m) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may have reasonably requested.
(n) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Initial Notes shall have been duly executed and delivered by the Company, and the Initial Notes shall have been duly authenticated by the Trustee.
(o) The Company and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof, and such agreement shall be in full force and effect.
(p) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall there have been any announcement of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible downgrading, or with negative implications, or direction not determined of, any rating of the Company or any of its subsidiaries or any securities of the Company or any of its subsidiaries (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 of its subsidiaries or any securities of the Company or any 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.
(q) The Notes shall have been approved for trading on PORTAL.
(r) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xviiis) The Original All proceedings taken in connection with the issuance of the Initial Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be eligible for trading reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such papers and documents as they may reasonably request in the Portal market upon issuanceconnection therewith, all in form and substance reasonably satisfactory to them.
(xixt) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as opinions, certificates, letters, schedules, documents or instruments required by this Agreement Section 10 to be fulfilled (or waived 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 and counsel to the Initial Purchasers), this Agreement may be terminated by . The Company shall furnish the Initial Purchasers on notice to such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Company at any time at or prior to the Closing Date, and such termination Initial Purchasers shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectreasonably request.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(a). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the Applicable Time, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, substantially to the effect set forth in Exhibit B hereto, including with respect to Guarantors organized under the laws of the states of Delaware and Texas; (Cii) Xxxxxxx X. Xxxxx, general counsel for to the Company Guarantors organized under the laws of the State of Oklahoma substantially in the form of Exhibits X-0Exhibit C hereto, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and (iii) counsel to the Initial PurchasersGuarantor organized under the laws of the State of Kansas substantially in the form of Exhibit D hereto, (iv) counsel to the Guarantor organized under the laws of the State of New Mexico substantially in the form of Exhibit E hereto and (v) counsel to the Guarantors organized under the laws of the State of Colorado substantially in the form of Exhibit F hereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representatives. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received a “comfort letter” from KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering the financial and accounting information of (A) the Company and its subsidiaries and (B) the Maverick Companies included or incorporated by reference in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information of (A) the Company and its subsidiaries and (B) the Maverick Companies included or incorporated by reference in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 3 business days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceRepresentatives and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company (including the required riders thereto) to DTC relating to the approval eligibility of the Notes by Securities for clearance and settlement through DTC for "book-entry" transfer shall have been complied with.
(j) Such other documents, approvals, affidavits, opinions or certificates as the Trustee or the Initial Purchasers may reasonably request in form and substance reasonably satisfactory to the Trustee or the Initial Purchasers, as the case may be, shall have been provided to the Trustee or the Initial Purchasers, as the case may be. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be Purchaser hereunder are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy of the representations and warranties on the part of the Issuers contained on the date hereof and at the time of purchase. Additionally, the obligations of the Initial Purchaser hereunder are subject to performance by the Issuers of its obligations hereunder and to the following conditions:
(a) the Company shall furnish to you at the time of purchase, an opinion of Xxxxxx & Whitney LLP, counsel for the Issuers, addressed to the Initial Purchaser and dated the date of the time of purchase and in this Agreement form satisfactory to counsel for the Initial Purchaser and as set forth in Exhibit B hereto;
(b) the Company shall be true furnish to you at the time of purchase, an opinion of Xxxxxxx Xxxxxx & Green P.C., special counsel for the Issuers with respect to regulatory matters, addressed to the Initial Purchaser and correctdated the date of the time of purchase, or true and correct in all material respects where such representations form satisfactory to counsel for the Initial Purchaser and warranties are not qualified by materiality or Material Adverse Effectas set forth in Exhibit C hereto;
(c) the Company shall furnish to you at the time of purchase, an opinion of Ropes and Xxxx LLP, special counsel for the Issuers with respect to regulatory matters, addressed to the Initial Purchaser and dated the date of the time of purchase, and in form satisfactory to counsel for the Initial Purchaser and as set forth in Exhibit D hereto;
(d) the Company shall furnish to you at the time of purchase, a letter of Xxxxx X. Xxxxx, Executive Vice President, General Counsel and Secretary of the Company, addressed to the Initial Purchaser and dated the date of the time of purchase, and in form satisfactory to counsel for the Initial Purchaser and as set forth in Exhibit E hereto;
(e) you shall have received on the date of this Agreement andand at the time of purchase, from Ernst & Young LLP, comfort letters dated, respectively, the date of this Agreement and the date of the time of purchase, as the case may be, and addressed to the Initial Purchaser, in each the forms heretofore approved by the Initial Purchaser;
(f) you shall have received on the date of this Agreement and at the time of purchase, from KPMG LLP, comfort letters dated, respectively, the date of this Agreement and the date of the time of purchase, as the case may be, and addressed to the Initial Purchaser, in the form heretofore approved by the Initial Purchaser;
(g) you shall have received at the time of purchase the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, dated the date of the time of purchase, in form and substance reasonably satisfactory to you;
(h) no amendment or supplement to either the Preliminary Memorandum or the Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in either Memorandum, shall at any time have been made or filed to which you have objected or shall object in writing;
(i) at the time of purchase, the Final Memorandum shall not contain an untrue statement of a material fact or omit 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;
(j) between the time of execution of this Agreement and the time of purchase (i) no material adverse change or any development involving a prospective material adverse change in the business, properties, management, financial condition or results of operations of (a) the Company and the Subsidiaries (including CCS), taken as a whole or (b) CCS shall occur or become known and (ii) no transaction which is material and unfavorable in any material respect to the Company shall have been entered into by the Company or any of its Subsidiaries;
(k) the Company will, at the time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer in the form attached as Exhibit G hereto;
(l) You shall have received a certificate of the Chief Financial Officer and Principal Financial and Accounting Officer of the Company, dated the date of the time of purchase, in the form attached as Exhibit H hereto, respecting the Company’s compliance, both prior to and after giving effect to the transactions contemplated hereby, with certain agreements and instruments respecting outstanding indebtedness of the Company and the Subsidiaries;
(m) You shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and the Indenture;
(n) Prior to or simultaneously with the time of purchase (i) the Acquisition shall have been consummated in accordance with the terms of the Stock Purchase Agreement and (ii) the Credit Agreement shall have been amended and restated upon terms satisfactory to the Initial Purchaser and the Credit Agreement shall be effective and the Company and the other borrowers thereunder shall be permitted to make borrowings thereunder;
(o) The opinion of Xxxxx Xxxx LLP referred to in Section 8.6(k) of the Stock Purchase Agreement shall have been delivered to the Company and the Initial Purchaser in accordance with the terms of the Stock Purchase Agreement and such opinion shall state that the Initial Purchaser may rely on such opinion as if it were an addressee thereof;
(p) The Company shall have furnished to you such other documents and certificates as to the Closing Date, except that if a representation accuracy and warranty is made completeness of any statement in the Final Memorandum as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respectsthe time of purchase, as applicableyou may reasonably request;
(q) as of such date. The Issuers Securities shall have performed or complied with all been designated for trading on PORTAL, subject only to notice of the agreements and covenants contained in this Agreement and required to be performed or complied with by them issuance at or prior to the Closing Date.time of purchase;
(r) Between the time of execution of this Agreement and the time of purchase, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date any public announcement of this Agreement any surveillance, review or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification possible change that does not indicate an affirmation or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed improvement in the Offering Memorandum, no action, suit rating accorded any securities of or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made guaranteed by the Company on or any class of its capital stock.Subsidiary by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) under the Securities Act;
(vs) CCS shall have executed and delivered the Joinder Agreement; and
(t) The Initial Purchasers Company shall have received certificates, dated entered into definitive agreements with Xxxx XxXxxxxxx that give effect to the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters terms set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed Exhibit I pursuant to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and documentation in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersPurchaser.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations obligation of each Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject to the performance by the Issuer and each of the Initial Purchasers Guarantors of their respective covenants and other obligations hereunder and to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchaseadditional conditions:
(ia) All of the The representations and warranties of the Issuers Issuer and the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Issuer, the Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(b) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by any of the Issuer or any of the Guarantors by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by any of the Issuer or any of the Guarantors (other than an announcement with positive implications of a possible upgrading).
(c) Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 3(d) hereof shall have occurred or shall exist, which event or condition is not described in the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum.
(d) The Initial Purchaser shall have received on and as of the Closing Date a certificate of an executive officer of the Issuer and of each Guarantor who has specific knowledge of such Issuer’s or such Guarantor’s financial matters and is satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Offering Memorandum and, to the best knowledge of such officer, the representation set forth in Section 3(a) hereof is true and correct, or (ii) confirming that the other representations and warranties of the Issuer and each Guarantor in this Agreement are true and correct and that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in all material respects where such representations paragraphs (b) and warranties are not qualified by materiality or Material Adverse Effect, on (c) above.
(e) On the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicablei) as of such date. The Issuers PricewaterhouseCoopers LLP shall have performed or complied with all furnished to the Initial Purchasers, at the request of the agreements Issuer, letters, dated the respective dates of delivery thereof and covenants addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Issuer and its subsidiaries contained in this Agreement the Preliminary Offering Memorandum and required the Offering Memorandum; and KPMG LLP shall have furnished to be performed or complied the Initial Purchasers, at the request of the Issuer, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasesr, in form and substance reasonably satisfactory to the Initial Purchasers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with by them at or respect to the financial statements and certain financial information of Nuevo contained in the Preliminary Offering Memorandum and the Offering Memorandum; provided in each case that such letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(iif) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following On the date of this Agreement or and on the Closing Date, each of Netherland, Xxxxxx & Associates, Inc. and Xxxxx Xxxxx Company shall have furnished to the Representatives, at such later date as the request of the Issuer, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers may determine. No stop order suspending Purchasers, in form and substance reasonably satisfactory to the qualification or exemption from qualification Representatives, containing statements and information with respect to the oil and gas reserves of the Original Notes in any jurisdiction shall have been issued Issuer and no proceeding for that purpose shall have been commenced or shall be pending or threatenedits subsidiaries.
(iiig) Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Issuer and the Guarantors, shall have furnished to the Initial Purchasers, at the request of the Issuer, their written opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the effect set forth in Exhibit A hereto.
(h) The Initial Purchasers shall have received on and as of the Closing Date an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental agency or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Original Notes Securities or consummation the issuance of the Exchange OfferGuarantees; except as disclosed in the Offering Memorandumand no injunction or order of any federal, no action, suit state or proceeding foreign court shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official issued that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirmingwould, as of the Closing Date, to their knowledge, prevent the matters set forth in paragraphs (i), (ii), (iii) and (iv) issuance or sale of this Section 8the Securities or the issuance of the Guarantees.
(vij) The Initial Purchasers Representatives shall have received on and as of the Closing Date opinions dated satisfactory evidence of the Closing Dategood standing of the Issuer and the Guarantors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the each case in writing or any standard form of Exhibits X-0telecommunication, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to from the Initial Purchasers and counsel to the Initial Purchasersappropriate governmental authorities of such jurisdictions.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viiik) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for counterpart of the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers Registration Rights Agreement that shall have received been executed and delivered by a "bring-down comfort letter" from PricewaterhouseCoopers LLPduly authorized officer of the Issuer and each of the Guarantors.
(l) Other than the 8 3/4% Notes Consent Solicitation, dated as of prior to or on the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall Transactions will be paid by the Company in full. Upon such payment, such credit agreement shall be terminated consummated in accordance with the terms thereofof the Transaction Agreements and as set forth in the Offering Memorandum, and all conditions precedent to borrowings under the Senior Secured Credit Agreement and the use of proceeds as set forth in the Offering Memorandum shall have been satisfied.
(xiiim) The Initial Purchasers shall have received on At the Closing Date a certificate from the Company dated the Closing Date as Date, after giving effect to the solvency consummation of the Company and transactions by the SubsidiariesTransaction Documents, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers there shall have received copies exist no default or event of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and default under the Indenture and or the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Senior Credit Secured Credit Agreement.
(xviiin) The Original Notes Representatives shall have received true copies of the Transaction Documents and all other material documentation related thereto.
(o) The Securities shall have been designated for trading in PORTAL and shall be eligible for trading in the Portal market upon issuanceclearance and settlement through DTC.
(xixp) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at On or prior to the Closing Date, the Issuer and the Guarantors shall have furnished to the Representatives such termination further certificates and documents as the Representatives may reasonably request. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be without liability of any party deemed to any other party. Notwithstanding any such termination, be in compliance with the provisions of Sections 4(f), 6, 7, 9, 10 hereof only if they are in form and 11(d) shall remain in effectsubstance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- respective obligations of the several Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction the accuracy, on and as of the following conditions prior to or concurrently with such purchase:
(i) All date hereof and the Closing Date, of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correctherein, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated herebyaccuracy of the statements of the Company and its officers made in any certificates delivered pursuant hereto, on to the Closing Date, except that if a representation and warranty is made as performance by the Company of a specific dateits obligations hereunder, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all each of the agreements following additional terms and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.conditions:
(iia) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchasers as promptly as practicable on the day or following the date of this Agreement or at such later other date and time as to which the Initial Purchasers may determine. No agree; and no stop order suspending the qualification or exemption from qualification sale of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding proceedings for that purpose shall have been commenced or shall be pending or threatened.
(b) All requisite corporate, limited liability company and limited partnership proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be satisfactory in all material respects to the Initial Purchasers and the Company shall have furnished to the Initial Purchasers all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(c) McGuireWoods LLP shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex B hereto.
(d) The Initial Purchasers shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Initial Purchasers a letter (the “Initial Letter”) of Ernst & Young, addressed to the Initial Purchasers and dated the date hereof, in form and substance reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers.
(f) The Company shall have furnished to the Initial Purchasers a letter (the “Bring-Down Letter”) of Ernst & Young, addressed to the Initial Purchasers and dated the Closing Date (A) confirming that they are independent public accountants with respect to the Company and its Subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (B) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letter), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letter are accurate and (C) confirming in all material respects the conclusions and findings set forth in the Initial Letter.
(g) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its Vice President and Chief Financial Officer and its Controller stating that (A) such officers have carefully examined the Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum (whether through incorporation by reference or otherwise) so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, (D) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date, (E) subsequent to the date of the most recent financial statements contained in the Offering Memorandum, (i) there has been no change in the capital stock or long-term debt of the Company or any of its Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole; (ii) neither the Company nor any of its Subsidiaries has entered into any transaction, incurred any liability or obligation, direct or contingent, where such transaction, liability or obligation is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any loss or interference with its business from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, where such occurrence or event is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except in each case as otherwise disclosed in the Preliminary Offering Memorandum and the Offering Memorandum, and (F) subsequent to the execution and delivery of the Purchase Agreement (i) no downgrading has occurred in the rating accorded the Securities or any of the Company’s other debt securities or preferred stock by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization has publicly announced or notified the Company that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or any of the Company’s other debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(h) The Company shall have furnished to the Initial Purchasers a certificate, dated the date hereof, of its Vice President and Chief Financial Officer and its Controller, with respect to financial information relating to fiscal years audited by Xxxxxx Xxxxxxxx, providing “Management Comfort” with respect to such information to the extent Ernst & Young is unable to provide such comfort, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex C hereto.
(i) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its Chairman and Chief Executive Officer and its Vice President and Chief Financial Officer, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex D hereto.
(j) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of the Company.
(k) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(l) The Securities shall have been approved by the NASD for trading in the PORTAL Market and shall be eligible for clearance and settlement through DTC.
(m) If any event shall have occurred that requires the Company under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A or Regulation S under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the reasonable judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Securities contemplated hereby.
(o) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto or document incorporated by reference therein), (i) there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole; (ii) neither the Company nor any of its Subsidiaries has entered into any transaction, incurred any liability or obligation, direct or contingent, where such transaction, liability or obligation is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any loss or interference with its business from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, where such occurrence or event is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except in each case as otherwise disclosed in the Preliminary Offering Memorandum and the Offering Memorandum, the effect of which, in any such case described above, in the judgment of JPMSI makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Memorandum (exclusive of any amendment or supplement thereto or document incorporated by reference therein).
(p) 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 or body which would, as of the Closing Date, prevent the issuance or sale of the Original Notes Securities; and no injunction, restraining order or consummation order of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit any other nature by any federal or proceeding state court of competent jurisdiction shall have been commenced and be pending against issued as of the Closing Date which would prevent the issuance or affecting or, sale of the Securities.
(q) Subsequent to the knowledge execution and delivery of this Agreement (i) no downgrading shall have occurred in the Issuers, threatened against rating accorded the Company and/or any Subsidiary before any court Securities or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions Company’s other debt securities or preferred stock by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization shall have publicly announced or have notified the Company that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or any of the Company’s other debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(r) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities or material disruption of securities clearance or settlement systems shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of JPMSI, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement are subject to and the registration requirements of the Act shall have been issuedOffering Memorandum.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vis) The Initial Purchasers shall have received on and as of the Closing Date opinions satisfactory evidence of the good standing of the Company and its significant subsidiaries, as defined pursuant to Rule 1-02(w) of Regulation S-X, in their respective jurisdictions of organization and their good standing in the other jurisdictions as JPMSI may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(t) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, addressed of its Treasurer, with respect to the Initial PurchasersCompany’s and its Subsidiaries’ compliance with any term, covenant or condition restricting the extent to which the Company or its Subsidiaries may enter into loan agreements which prohibit the payment of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel dividends or the making of loans or transferring of property to the IssuersCompany or to other Subsidiaries contained in any indenture, (B) Jenkens & Xxxxxxxxxmortgage, a professional corporationdeed of trust, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for loan agreement or other agreement or instrument evidencing indebtedness to which the Company substantially in or any of its Subsidiaries is a party or by which the form Company or any of Exhibits X-0its Subsidiaries is bound or to which any of their property or assets is subject, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel Purchasers, to the Initial Purchasers.
(vii) The Initial Purchasers effect set forth in Annex E hereto. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall have received on be deemed to be in compliance with the Closing Date an opinion (satisfactory provisions hereof only if they are in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersXxxxxxx Xxxxxxx & Xxxxxxxx.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- several obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreementherein, shall be subject to the satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date hereof and on the Closing Date with the same force and effect as if made on and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on date hereof and the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such daterespectively. The Issuers Each Issuer shall have performed or complied with all of the agreements and covenants herein contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 2:00 p.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may determine. No agree, and no stop order suspending the qualification or exemption from qualification of the Original Notes thereof 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.
(iiic) No action shall have been taken with respect to the Issuers or the Manager and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that which would, as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offerthereof; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against against, any of the Company and/or any Subsidiary Issuers or the Manager before any court or arbitrator or any governmental or tribal body, agency or official that would (including, but not limited to, any Gaming Authorities) that, if adversely determined, could reasonably be expected to have result in a Material Adverse Effect; and no stop order preventing shall have been issued prevent ing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
(d) Since the dates as of which information is given in the Offering Memorandum, (i) there shall not have been any order asserting material adverse change, whether or not arising in the ordinary course of business, or any change or any development that is reasonably likely to result in a material adverse change, in the capital stock, membership units or partnership units, as applicable, or the long-term debt, or material increase in the short-term debt, of any of the transactions contemplated by this Agreement are subject to Issuers or the registration requirements of the Act shall have been issued.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, Manager from that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (aii) neither no dividend or distribution of any kind shall have been declared, paid or made by any of the Company nor Issuers or the Manager on any Subsidiary has class of its capital stock, membership units or partnership units, as applicable and (1iii) none of the Issuers or the Manager shall have incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effectare material, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would to the Issuers, taken as a whole, or the Manager, taken as a whole, respectively, 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, or any development that is reasonably be expected likely to have result in a Material Adverse Effect material adverse change, in the business, prospects, financial condition or results of operation of the Issuers and (c) there has been no dividend or distribution of any kind declaredthe Manager, paid or made by the Company on any class of its capital stocktaken as a whole.
(ve) The Issuers' 12 % Senior Notes due 2003 (the "Senior Notes") tendered pursuant to the tender offer and consent solicitation for the Senior Notes shall have been accepted for purchase by the Issuers in compliance with the Offer to Purchase and Consent Solicitation Statement, as in effect on the date hereof (the "Statement"). The supplemental indenture to the indenture under which the Senior Notes were issued (the "Supplemental Indenture") containing the Proposed Amendments, including the Change of Control Amendment (each, as defined in the Statement) shall have been executed and be effective as of the date hereof. The Officers' Certificate referred to Section 3(b) of the Supplemental Indenture shall have been delivered by each of the Issuers and the Supplemental Indenture shall be operative prior to Closing.
(f) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers on behalf of each of Issuer, in form and substance satisfactory to the Company and the Guarantors Initial Purchasers, confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic) and (ivd) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated 8 and that, as of the Closing Date, addressed the obligations of the such Issuer to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasersbe performed hereunder on or prior thereto have been duly performed.
(viig) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers) dated the Closing Date , of Xxxxxx & Xxxxxxx ("Xxxxxx"), special counsel for the Issuers; Xxxxxx & Xxxxxxx, special Indian gaming counsel to the Initial PurchasersIssuers; Rome XxXxxxxx Sabonosh P.C., special Connecticut counsel to the Issuers; and an opinion of Xxxxxx relating to certain tax matters to the effect set forth in Exhibits B-1, B-2, B-3 and B-4, respectively, hereto.
(viiih) The At the time this Agreement is executed and at the Closing Date, the Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Companyaccountants, dated as of the date of this AgreementAgreement and as of the Closing Date, comfort letters addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, for the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as with respect to the financial state ments and certain financial information of the Closing Date, addressed to Issuers contained in the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial PurchasersOffering Memorandum.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company an opinion, dated the Closing Date as to the solvency of the Company Date, in form and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may substance reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel satisfactory to the Initial Purchasers, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Skadden"), counsel for the Initial Purchasers, covering such matters as are customarily covered in such opinions.
(j) Skadden shall have been furnished with such documents documents, in addition to those set forth above, as they may reasonably request to enable 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 contained in this Agreementherein contained.
(xviiik) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior 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.
(l) The Issuers and the Trustee shall have entered into the Indenture and the Security Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(m) The Notes shall have been approved for trading on PORTAL.
(n) All opinions, certificates, letters and other documents required by this Section 8 to be delivered by the Issuers will be in compliance with the provisions hereof only if they are reason ably satisfactory in form and substance to the Initial Purchasers. The Issuers shall furnish the Initial Purchasers with such termination conformed copies of such opinions, certificates, letters and other documents as it shall reasonably request.
(o) On the Closing Date, an amount of the net proceeds from the Offering equal to two semi-annual interest payments on the Notes shall paid directly to the Securities Intermediary (as defined the Security Agreement) to fund the Interest Reserve Account and the Senior Notes shall be without liability accepted for purchase.
(p) All proceeding taken in connection with the sale of any party the Notes as herein contemplated shall be reasonably satisfactory in form and substance to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 Initial Purchasers and 11(d) shall remain in effectto Skadden.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers Issuer contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers Issuer shall have performed or complied in all material respects with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them it at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and the chief financial officer of the Issuer, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the second business day immediately following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiii) No action shall have been taken The Notes will be rated at least Caa2 from Xxxxx'x Investors Service and no statuteat least CCC+ from Standard & Poor's Ratings Group, rulein each case, regulation with a stable 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effectbetter outlook; and no stop order preventing (ii) the use of the Preliminary Offering Memorandum Company's existing 8 1/2% Senior Subordinated Notes due 2014 shall be rated at least Caa1 from Xxxxx'x Investors Service and at least CCC+ from Standard & Poor's Ratings Group, in each case, with a stable or 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 issuedbetter outlook.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ax) Xxxxxxx Ropes & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Gray LLP, counsel to the IssuersIssuer, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0Exhibit B-1 attached hereto, X-0 and ------------ --- A-3(y) Xxxxx X. Xxxxxxxx, respectivelygeneral counsel of the Issuer, --- substantially in the form of Exhibit B-2 attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasershereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Initial Purchasers shall have received a "comfort letter" from the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and substantially in the form most recently provided to the Initial Purchasers, and otherwise in form and substance reasonably satisfactory to the Representative and counsel to the Initial Purchasers prior to 5:00 p.m. New York City time, on the business day following the date on which a copy of the Offering Memorandum becomes available, containing excerpts from the Offering Memorandum indicating the procedures performed by such independent public accountants on the financial data included therein in form and substance satisfactory to the Representative and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Representative and counsel to the Initial Purchasers.
(g) The Issuer and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuer shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as they may reasonably request.
(i) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) . All agreements set forth in the blanket representation letter of the Issuers Issuer to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer shall have been complied with. .
(j) The Initial Purchasers shall have received a certificate of the Chief Financial Officer of the Issuer dated the Closing Date and substantially in the Form of Exhibit C. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Issuer at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- respective obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be hereunder are subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(i) All accuracy, at the Applicable Time and the Closing Date, of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correctherein, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on performance by the Closing Date, except that if a representation and warranty is made as Company of a specific dateits obligations hereunder, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all each of the agreements following additional terms and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Dateconditions.
(iia) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiib) No action Initial Purchaser shall have been taken discovered and no statutedisclosed to the Company on or prior to such Closing Date that the Pricing Disclosure Package or the Final Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, rulein the opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, regulation counsel for the Initial Purchasers, is material or order omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the other Operative Documents, the Pricing Disclosure Package, the Final Offering Memorandum, and all other legal matters relating to this Agreement and the Transactions shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have been enactedfurnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxx & Lardner LLP shall have furnished to the Initial Purchasers its written opinion, adopted or issued by any governmental agency that wouldas counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated as of the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasersits counsel.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLPsuch opinion or opinions, dated as of the Closing Date, addressed with respect to the issuance and sale of the Notes and the Guarantees, the Pricing Disclosure Package, the Final Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and in form and substance satisfactory the Company shall have furnished to such counsel such documents as they reasonably request for the Initial Purchasers and counsel purpose of enabling them to the Initial Purchaserspass upon such matters.
(ixf) Each of the Issuers Company, the Guarantors and the Trustee shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xig) Each of the Issuers Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xiih) The Company Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(i) At the Applicable Time, the Initial Purchasers shall have notified received from PricewaterhouseCoopers LLP, a letter, in form and substance satisfactory to the lenders Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities 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 Company's credit agreement Commission, (ii) stating, as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Offering Memorandum, as of a date not more than three days prior to the Applicable Time), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers.
(j) With respect to the letter of PricewaterhouseCoopers, LLP, referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Initial Purchasers shall have received a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated as of December 30the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities 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 Commission, 1997(ii) stating, as amended (as in effect on of the date hereofof the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of the Company's intention to pay all obligations such firm with respect thereto with a portion of to the proceeds of the Original Notes financial information and simultaneously with the issuance of the Original Notes all such obligations shall be paid other matters covered by the Company initial letter and (iii) confirming in full. Upon such payment, such credit agreement shall be terminated all material respects the conclusions and findings set forth in accordance with the terms thereofinitial letter.
(xiiik) The Initial Purchasers shall have received on the Closing Date (i) a certificate from the Company Company, dated the Closing Date Date, signed by its President and Chief Executive Officer and its Chief Financial Officer or Treasurer and (ii) a certificate from each Guarantor, dated as to of the solvency Closing Date, signed by its Chairman of the Board, Chief Executive Officer or President stating, as applicable, that:
(A) The representations and warranties of the Company and the SubsidiariesGuarantors, addressed as applicable, are true and correct as if made on and as of the Closing Date (other than to the Initial Purchasersextent any such representation or warranty is made expressly to a certain date), and the Company and the Guarantors, as applicable, have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(B) As of the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum, except as described in the Pricing Disclosure Package and the Final Offering Memorandum, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a material adverse effect on the consolidated financial position, shareholders’ equity, results of operation, business or prospects of the Company and its subsidiaries;
(C) They have carefully examined the Pricing Disclosure Package and the Final Offering Memorandum and, in their opinion the Pricing Disclosure Package and the Final Offering Memorandum, as of their respective dates, did not, and the Pricing Disclosure Package and the Final Offering Memorandum, as of the Closing Date, does not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Pricing Disclosure Package and the Final Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Pricing Disclosure Package and the Final Offering Memorandum; and
(D) The issuance and sale of the Notes and Guarantees by the Company and the Guarantors hereunder has not been enjoined (temporarily or permanently) by any court or governmental body or agency.
(xivl) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Final Offering Memorandum and (ii) since the Applicable Time there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Final Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes and the Guarantees being delivered on such Closing Date on the terms and in the manner contemplated herein and in the Pricing Disclosure Package and the Final Offering Memorandum.
(m) Subsequent to the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act and (ii) no such organization shall have publicly announced or privately informed the Company that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(n) Subsequent to the Applicable Time, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) or there shall have occurred any other calamity or crisis, including without limitation as a result of terrorist activities after the date hereof, as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes and the Guarantees being delivered on such Closing Date on the terms and in the manner contemplated herein and in the Pricing Disclosure Package and the Final Offering Memorandum.
(o) Substantially concurrently with the Closing Date, the Company shall have issued an irrevocable redemption notice with respect to all of the Existing Notes not validly tendered and accepted pursuant to the Tender Offer.
(p) The Initial Purchasers shall have received copies of the Guarantees conformed such other documents, agreements, certificates and information as executed.
(xv) they shall have reasonably requested. All government authorizations required opinions, letters, evidence and certificates mentioned above or elsewhere in connection this Agreement shall be deemed to be in compliance with the issue provisions hereof only if they are in form and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions substance reasonably satisfactory to counsel for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers and the Guarantors shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the Chief Financial Officer and Treasurer of the Issuers, certifying as to the foregoing and to the effect in Section 8(c);
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(b). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.;
(iiic) No action Since the execution of this Agreement, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt of the Issuers or order shall have been enacted, adopted or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as of the Closing Date, prevent the issuance of the Original Notes or consummation defined in Section 3(a)(62) of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.possible change;
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx Xxxxxx & Xxxxxx L.L.P.LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for Issuers and the Company, Guarantors and (Cii) Xxxxxxx Xxxxxx X. XxxxxXxXxxxxxx, general counsel for of the Company Issuers and the Guarantors, substantially in the form of Exhibits X-0, X-0 Annex II(a) and ------------ --- A-3, respectively, --- Annex II(b) attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.hereto;
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.;
(xviiif) The Original Notes Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture and the Initial Purchasers shall have received copies thereof;
(g) On the date hereof, the Initial Purchasers shall have received a “comfort letter” from the independent public accountants for the Partnership, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Partnership, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 3 business days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representative and counsel to the Initial Purchasers;
(i) Neither the Partnership nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Portal market upon issuance.Final Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), and (ii) since the respective dates as of which information is given in the Final Offering Memorandum there shall not have been any change in the capital stock or long-term debt of the Partnership or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, partners’ or stockholders’ equity or results of operations of the Partnership or any of its Subsidiaries, otherwise than as set forth or contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement thereto);
(xixi) The Initial Purchasers shall have been furnished with written instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request; and
(j) All agreements set forth in the blanket representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "“book-entry" ” transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company Issuers at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, except to the provisions of Sections 4(f), 6, 7, 9, 10 and extent set forth in Section 11(d) shall remain in effecthereof. The documents required to be delivered by this Section 8 will be delivered at the office of counsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing DateDate as though then made, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have timely performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinePurchaser in accordance with Section 4(b) hereof. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt security or preferred stock of the Company or any Subsidiary by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(d) 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 Original Notes Securities or consummation of the Exchange Offer; except as disclosed in the Offering MemorandumPricing Disclosure Package, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against the Company and/or any Subsidiary Issuer before any court or arbitrator or any governmental body, agency or official that would that, if adversely determined, could reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement or 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.
(ive) As of September 30Since December 31, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 20012013, except as set forth or contemplated in the Offering MemorandumPricing Disclosure Package, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vf) The Initial Purchasers Purchaser shall have received certificates, dated the Closing Date, signed by two an authorized officers officer of each of the Company and the Guarantors Issuer confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 8.
(vig) The Initial Purchasers Purchaser shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial PurchasersPurchaser, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxx Xxxxxx L.L.P.LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, including customary qualifications and (C) Xxxxxxx X. Xxxxxlimitations, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersExhibit B hereto.
(viih) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial PurchasersPurchaser) dated the Closing Date of Xxxxxx from Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial PurchasersPurchaser.
(viiii) The Initial Purchasers Purchaser shall have received a "“comfort letter" ” from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx Deloitte & Touche LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers Purchaser and in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser, covering the financial and accounting information in the Pricing Disclosure Package and other customary matters. In addition, the Initial Purchasers Purchaser shall have received a "bring-“bring down comfort letter" ” from PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers Purchaser and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser.
(ixj) Each of the Issuers and the Trustee shall have entered into executed and delivered the Indenture in form and each of substance satisfactory to the Initial Purchasers Purchaser and the Initial Purchaser shall have received copies, conformed as executed, thereof.
(xk) Each of the Issuers shall have entered executed and delivered into the Credit Facilities Registration Rights Agreement in form and each of substance satisfactory to the Initial Purchasers Purchaser and the Initial Purchaser shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xvl) All government authorizations required in connection with the issue and sale of the Notes Securities as contemplated under this Agreement and the performance of the Company's Issuers’ obligations hereunder and under the Indenture and the Notes Securities shall be in full force and effect.
(xvim) The Initial Purchasers Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes Securities in accordance with this Agreement and such other information as it may reasonably request.
(xviin) Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Initial PurchasersPurchaser, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiio) The Original Company shall have (i) committed itself to repurchasing all of the Existing Notes, either pursuant to the acceptance of Existing Notes shall be eligible for trading tendered by the early tender date specified in the Portal market upon issuance.
Tender Offer, the issuance of an irrevocable notice of redemption for Existing Notes, or both, and (xixii) All agreements set forth taken all other actions necessary to remove or defease substantially all of the covenants in the representation letter of indenture governing the Issuers Existing Notes. The documents required to DTC relating to the approval of the Notes be delivered by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled will be delivered at the office specified in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers Section 3 hereof on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Samples: Purchase Agreement (Phi Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original NotesSecurities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, and on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date. The Initial Purchasers shall have received a certificate, dated the Closing Date, signed by the chief executive officer and chief financial officer of the Company, certifying as to the foregoing and to the effect in Section 8(c).
(iib) The Final Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinerequired by Section 4(a). No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) No action Since the Applicable Time, there shall not have been taken and no statute, rule, regulation any decrease in the rating of any debt or order shall have been enacted, adopted preferred stock of the Company or issued any Subsidiary by any governmental agency that would, “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering MemorandumAct), or any amendment notice given of any intended or supplement thereto, potential decrease in any such rating or of a possible change in any order asserting such rating that any does not indicate the direction of the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issuedpossible change.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vid) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (Ai) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P.Xxxxx LLP, counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, substantially to the effect set forth in Exhibit B hereto, including with respect to Guarantors organized under the laws of the states of Delaware and Texas; (Cii) Xxxxxxx X. Xxxxx, general counsel for to the Company Guarantors organized under the laws of the State of Oklahoma substantially in the form of Exhibits X-0Exhibit C hereto, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and (iii) counsel to the Initial PurchasersGuarantor organized under the laws of the State of Kansas substantially in the form of Exhibit D hereto, and (iv) counsel to the Guarantor organized under the laws of the State of New Mexico substantially in the form of Exhibit E hereto.
(viie) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Representative. Such counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such certificates and documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiif) The Original Notes On the date hereof, the Initial Purchasers shall have received a “comfort letter” from KPMG LLP, the independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representatives and counsel to the Initial Purchasers, covering the financial and accounting information in the Preliminary Offering Memorandum and the Pricing Supplement. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from the independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be eligible for trading brought down to a date no more than 3 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Portal market upon issuanceRepresentatives and counsel to the Initial Purchasers.
(xixg) The Issuers and the Trustee shall have delivered the Indenture and the Initial Purchasers shall have received copies thereof. The Issuers shall have executed and delivered the Registration Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(h) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Securities in accordance with this Agreement and such other information as they may reasonably request.
(i) All agreements set forth in the blanket representation letter of the Issuers Company (including the required riders thereto) to DTC relating to the approval eligibility of the Notes by Securities for clearance and settlement through DTC for "book-entry" transfer shall have been complied with.
(j) Such other documents, approvals, affidavits, opinions or certificates as the Trustee or the Initial Purchasers may reasonably request in form and substance reasonably satisfactory to the Trustee or the Initial Purchasers, as the case may be, shall have been provided to the Trustee or the Initial Purchasers, as the case may be. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, The documents required to be delivered by this Section 8 will be delivered at the provisions office of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effectcounsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers Purchaser to purchase and pay for the Original NotesOffered Securities, as provided for in this Agreement, shall be subject to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) All of the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(iib) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determinePurchaser in accordance with Section 4(b) hereof. No stop order suspending the qualification or exemption from qualification of the Original Notes Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iiic) Since the execution of this Agreement, there shall not have been any decrease in the rating of any debt or preferred stock of the Company or any Subsidiary by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(d) 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 Original Notes Securities or consummation of the Exchange Offer; except as disclosed in the Offering MemorandumPricing Disclosure Package, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against the Company and/or any Subsidiary Issuer before any court or arbitrator or any governmental body, agency or official that that, if adversely determined, would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement or 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.
(ive) As of September 30Since December 31, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 20012009, except as set forth or contemplated in the Offering MemorandumPricing Disclosure Package, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vf) The Initial Purchasers Purchaser shall have received certificates, dated the Closing Date, signed by two an authorized officers officer of each of the Company and the Guarantors Issuer confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (ia), (iib), (iiic), (d) and (ive) of this Section 8.
(vig) The Initial Purchasers Purchaser shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial PurchasersPurchaser, of (A) Jones, Walker, Xxxxxxxxx, Xxxxxxx & XxxxxXxxxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, including customary qualifications and (C) Xxxxxxx X. Xxxxxlimitations, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersExhibit B hereto.
(viih) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial PurchasersPurchaser) dated the Closing Date of Xxxxxx from Xxxxxx & XxxxxxxXxxxxx L.L.P., counsel to the Initial PurchasersPurchaser.
(viiii) The Initial Purchasers Purchaser shall have received a "“comfort letter" ” from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx Deloitte & Touche LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers Purchaser and in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser, covering the financial and accounting information in the Pricing Disclosure Package. In addition, the Initial Purchasers Purchaser shall have received a "bring-“bring down comfort letter" ” from PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants for the Company, dated as of the Closing Date, addressed to the Initial Purchasers Purchaser and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser.
(ixj) Each of the Issuers and the Trustee shall have entered into executed and delivered the Indenture and each of the Initial Purchasers Purchaser shall have received copies, conformed as executed, thereof.
(xk) Each of the Issuers shall have entered executed and delivered into the Credit Facilities Registration Rights Agreement and each of the Initial Purchasers Purchaser shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xvl) All government authorizations required in connection with the issue and sale of the Notes Offered Securities as contemplated under this Agreement and the performance of the Company's Issuers’ obligations hereunder and under the Indenture and the Notes Offered Securities shall be in full force and effect.
(xvim) The Initial Purchasers Purchaser shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes Offered Securities in accordance with this Agreement and such other information as it may reasonably request.
(xviin) Xxxxxx & Xxxxxx & XxxxxxxL.L.P., counsel to the Initial PurchasersPurchaser, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviiio) The Original Notes shall be eligible for trading Each purchaser in the Portal market upon issuance.
(xix) All agreements set forth Regulation D Private Placement shall have executed a letter agreement with UBS Securities LLC, substantially in the representation letter form of the Issuers Exhibit D hereto. The documents required to DTC relating to the approval of the Notes be delivered by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 (a) shall not have been fulfilled will be delivered at the office specified in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers), this Agreement may be terminated by the Initial Purchasers Section 3 hereof on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
Appears in 1 contract
Samples: Purchase Agreement (Phi Inc)
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Original Notes, as provided for in this Agreement, shall be Senior Notes are subject to satisfaction of the following conditions prior to or concurrently with such purchaseconditions:
(a) Any required order or orders of the Commission under the Holding Company Act permitting the transactions contemplated hereby substantially in accordance with the terms and conditions hereof shall be in full force and effect and shall contain no provision unacceptable to the Initial Purchasers or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to the Representatives, are deemed acceptable to the Initial Purchasers and the Company and all provisions of such order or orders hereafter entered shall be deemed acceptable to the Initial Purchasers and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of Balch & Bingham LLP, counsel for the Company, substantially xx xxe fxxx xxxached hereto as Schedule II.
(2) The opinion, dated the Closing Date, of Pillsbury Winthrop LLP, counsel to the Trustee, substantially in the form attached hereto as Schedule III.
(3) The opinion, dated as of the Closing Date, of Dewey Ballantine LLP, counsel for the Initial Purchasers, suxxxxxxxxxxx xx xhe form attached hereto as Schedule IV.
(4) At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Offering Memorandum, any material adverse change in the business, properties or financial condition of the Company, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President or any Vice President of the Company, dated as of the Closing Date, to the effect that (i) All of there has been no such material adverse change, (ii) the representations and warranties of the Issuers contained in this Agreement shall be true and correct, or Section 1 hereof are true and correct in all material respects where such representations with the same force and warranties are not qualified by materiality or Material Adverse Effect, on the date effect as though expressly made at and as of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation Date and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicableiii) as of such date. The Issuers shall have performed or the Company has complied with all of the agreements and covenants contained in this Agreement and required satisfied all conditions on its part to be performed or complied with by them at satisfied on or prior to the Closing Date.
(ii5) The Offering Memorandum On the Closing Date, the Representatives shall have been printed and copies distributed to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption received from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(iii) 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, Deloitte & Touche LLP a letter dated as of the Closing Date, prevent Date to the issuance effect that: (A) they are independent public accountants with respect to the Company within the meaning of the Original Notes or consummation Securities Act and the rules and regulations under the Securities Act; (B) in their opinion, the financial statements audited by them and included in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange OfferAct and the rules and regulations under the Exchange Act; and (C) on the basis of certain limited procedures performed through a specified date not more than five business days prior to the date of such letter, namely (i) reading the minute books of the Company; (ii) performing the procedures specified by the American Institute of Certified Public Accountants ("AICPA") for a review of interim financial information as described in Statement on Auditing Standards No. 71, "Interim Financial Information" or Statement on Auditing Standards No. 100, "Interim Financial Information", as applicable, on the unaudited financial statements, if any, of the Company included in the Offering Memorandum and of the latest available unaudited financial statements of the Company, if any, for any calendar quarter subsequent to the date of those included in the Offering Memorandum; and (iii) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding such unaudited financial statements or any specified unaudited amounts derived therefrom (it being understood that the foregoing procedures do not constitute an audit performed in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP make no representations as to the sufficiency of such procedures for the Initial Purchasers' purposes), nothing came to their attention that caused them to believe that: (1) any material modifications should be made to the unaudited condensed financial statements included in the Offering Memorandum for them to be in conformity with generally accepted accounting principles; (2) such unaudited condensed financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related published rules and regulations thereunder; (3) the unaudited amounts for Operating Revenues, Earnings Before Income Taxes and Net Income and the unaudited Ratio of Earnings to Fixed Charges set forth in the Offering Memorandum do not agree with the amounts set forth in or derived from the unaudited financial statements for the same period or were not determined on a basis substantially consistent with that of the corresponding audited amounts or ratios included in the Offering Memorandum; (4) as of a specified date not more than five business days prior to the date of delivery of such letter, there has been any change in the capital stock or long-term debt of the Company or any decrease in net assets as compared with amounts shown in the latest audited balance sheet, except as in each case for changes or decreases which (i) the Offering Memorandum discloses have occurred or may occur, (ii) are occasioned by the declaration of dividends, (iii) are occasioned by draw-downs under existing pollution control financing arrangements, (iv) are occasioned by draw-downs and regularly scheduled payments of capitalized lease obligations, (v) are occasioned by the purchase or redemption of bonds or stock to satisfy mandatory or optional redemption provisions relating thereto, (vi) are occasioned by the reclassification of current maturities of long-term debt, or (vii) are disclosed in such letter; and (5) the unaudited amounts for Operating Revenues, Earnings Before Income Taxes and Net Income and the unaudited Ratio of Earnings to Fixed Charges for any calendar quarter subsequent to those set forth in (3) above, which, if available, shall be set forth in such letter, do not agree with the amounts set forth in or derived from the unaudited financial statements for the same period or were not determined on a basis substantially consistent with that of the corresponding audited amounts or ratios included in the Offering Memorandum. Deloitte & Touche LLP shall also have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, (in each case to the knowledge extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the IssuersCompany and its subsidiaries subject to the internal controls of the Issuer's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, threatened against a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(6) On the Closing Date, Dewey Ballantine LLP, counsel for the Initial Purchasers shaxx xxxx xxxx xxxnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Senior Notes as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and/or any Subsidiary before any court in connection with the issuance and sale of the Senior Notes as herein contemplated shall be satisfactory in form and substance to the Representatives and Dewey Ballantine LLP, counsel for the Initial Purchasers.
(7) That no amendment or arbitrator or any governmental body, agency or official that would reasonably be expected supplement to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum shall be unsatisfactory in form to Dewey Ballantine LLP or shall contain information (other thax xxxx xxxxxxx xo an amendment or supplement relating solely to the activity of the Initial Purchasers) which, in the reasonable judgment of the Representatives, shall materially impair the marketability of the Senior Notes.
(8) Beck shall have consented to the references to it in the Offxxxxg Memorandum and the use of the Independent Engineer's Report prepared by Beck and contained in Annex A to the Offering Memorandum; anx xxnfirmed that nothing has come to their attention in connection with the preparation of the Independent Engineer's Report which would cause it to believe that the Independent Engineer's Report, as of its date, 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth statements in the Offering Memorandum. Since September 30Memorandum specifically attributed to it, 2001, except as set forth or contemplated in of the date of the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities were inaccurate or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into misleading in any material transaction not in respect, as evidenced by a certificate satisfactory to the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificatesof an authorized officer of Beck, delivered and dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi0) PA Consulting Services, Inc. ("PA") shall have consented to the references to it in the Offering Memorandum and the use of the Independent Market Expert's Report prepared by PA and contained in Annex B to the Offering Memorandum; and since the date of the Independent Market Expert's Report, no event affecting the Report or the matters referred to therein shall have occurred (i) which shall make untrue or incorrect in any material respect, as of the date of this Agreement, any information or statement contained in the Independent Market Expert's Report or in the Offering Memorandum relating to matters referred to in the Independent Market Expert's Report or (ii) which is not reflected in the Offering Memorandum but should be reflected therein in order to make the statements and information contained in the Offering Memorandum relating to matters referred to in the Independent Market Expert's Report, in light of the circumstances under which they were made, not misleading, as evidenced by a certificate satisfactory to the Initial Purchasers of an authorized officer of PA, delivered and dated as of the Closing Date.
(10) The Initial Purchasers shall have received on the Closing Date opinions dated the Closing Date, addressed to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(vii) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement executed by the Company and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereofRepresentatives.
(xii11) The Company shall have notified the lenders under the Company's credit agreement dated performed its obligations when and as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiii) The Initial Purchasers shall have received on the Closing Date a certificate from the Company dated the Closing Date as to the solvency of the Company and the Subsidiaries, addressed to the Initial Purchasers.
(xiv) The Initial Purchasers shall have received copies of the Guarantees conformed as executed.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated provided under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvi) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other information as it may reasonably request.
(xvii) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(xviii) The Original Notes shall be eligible for trading in the Portal market upon issuance.
(xix) All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions condition specified in this Section 8 (a) shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled (or waived by the Initial Purchasers)fulfilled, this Agreement may be terminated by the Initial Purchasers on Representatives by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party. Notwithstanding any such terminationparty except as provided in Sections 4, the provisions of Sections 4(f), 6, 7, 9, 10 7 and 11(d9(b) shall remain in effecthereof.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The --------------------------------------------- obligation of each Initial Purchaser to purchase the Underwritten Securities on the Closing Date or the Option Securities on the Additional Closing Date, as the case may be as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or the Additional Closing Date, as the case may be, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Initial Purchasers Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to purchase market the Securities on the terms and pay for in the Original Notes, as provided for manner contemplated in this Agreement, the Time of Sale Information and the Offering Memorandum.
(b) The Initial Purchasers s shall be subject to satisfaction have received on the Closing Date or the Additional Closing Date, as the case may be, a certificate, dated the Closing Date or the Additional Closing Date, as applicable, and signed by an executive officer of the following conditions prior Company, to or concurrently with such purchase:
(i) All of the effect that the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct, or are true and correct in all material respects where such representations and warranties are not qualified by materiality as of the Closing Date or Material Adverse Effect, on the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Additional Closing Date, except that if a representation and warranty is made as of a specific dateapplicable, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or that the Company has complied with all of the agreements and covenants contained in this Agreement and required satisfied all of the conditions on its part to be performed or complied with by them at satisfied hereunder on or prior to before the Closing Date or the Additional Closing Date.
(ii) , as applicable. The Offering Memorandum shall have been printed officer signing and copies distributed delivering such certificate may rely upon the best of his or her knowledge as to the Initial Purchasers on the day following the date of this Agreement or at such later date as the Initial Purchasers may determine. No stop order suspending the qualification or exemption from qualification of the Original Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or proceedings threatened.
(iii) 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 Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the knowledge of the Issuers, threatened against the Company and/or any Subsidiary before any court or arbitrator or any governmental body, agency or official that would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the use of the Preliminary Offering Memorandum or 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.
(iv) As of September 30, 2001, neither the Company nor any Subsidiary had any material liabilities or obligations, direct or contingent, that were not set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum. Since September 30, 2001, except as set forth or contemplated in the Offering Memorandum, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or obligations, direct or contingent, that would reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Company and the Subsidiaries that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The Initial Purchasers shall have received certificates, dated the Closing Date, signed by two authorized officers of each of the Company and the Guarantors confirming, as of the Closing Date, to their knowledge, the matters set forth in paragraphs (i), (ii), (iii) and (iv) of this Section 8.
(vi) The Initial Purchasers shall have received on the Closing Date opinions or the Additional Closing Date, as the case may be, an opinion of Xxxxxx & Xxxxxx, L.L.P., outside counsel for the Company, dated the Closing Date or the Additional Closing Date, addressed as applicable, in form and substance acceptable to the Initial Purchasers, of (A) Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel to the Issuers, (B) Jenkens & Xxxxxxxxx, a professional corporation, special regulatory counsel for the Company, and (C) Xxxxxxx X. Xxxxx, general counsel for the Company substantially effect set forth in the form of Exhibits X-0, X-0 and ------------ --- A-3, respectively, --- attached hereto and in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial PurchasersAnnex C hereto.
(viid) The Initial Purchasers shall have received on the Closing Date or the Additional Closing Date, as the case may be, an opinion (satisfactory of Xxxxx X. Xxxx, Vice President and General Counsel of the Company, dated the Closing Date or the Additional Closing Date, as applicable, in form and substance to the Initial Purchasers) dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel acceptable to the Initial Purchasers.
(viii) The Initial Purchasers shall have received a "comfort letter" from PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, independent public accountants for the Company, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. In addition, the Initial Purchasers shall have received a "bring-down comfort letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(ix) Each of the Issuers shall have entered into the Indenture and each of the Initial Purchasers shall have received copies, conformed as executed, thereof.
(x) Each of the Issuers shall have entered into the Credit Facilities and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xi) Each of the Issuers shall have entered into the Registration Rights Agreement and each of the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(xii) The Company shall have notified the lenders under the Company's credit agreement dated as of December 30, 1997, as amended (as in effect on the date hereof), of the Company's intention to pay all obligations with respect thereto with a portion of the proceeds of the Original Notes and simultaneously with the issuance of the Original Notes all such obligations shall be paid by the Company in full. Upon such payment, such credit agreement shall be terminated in accordance with the terms thereof.
(xiiie) The Initial Purchasers shall have received on the Closing Date a certificate from or the Company Additional Closing Date, as the case may be, an opinion of Xxx Xxxxxxxx, Ph.D., Vice President, Intellectual Property, of the Company, dated the Closing Date or the Additional Closing Date, as to the solvency of the Company applicable, in form and the Subsidiaries, addressed substance acceptable to the Initial Purchasers.
(xivf) The Initial Purchasers shall have received copies on the Closing Date or the Additional Closing Date, as the case may be, an opinion of Ropes & Xxxx LLP, counsel for the Guarantees conformed Initial Purchasers, dated the Closing Date or the Additional Closing Date, as executedapplicable, in form and substance acceptable to the Initial Purchasers.
(xv) All government authorizations required in connection with the issue and sale of the Notes as contemplated under this Agreement and the performance of the Company's obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(xvig) The Initial Purchasers shall have been furnished with wiring instructions received on the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the application of Initial Purchasers, dated the proceeds of Closing Date or the Original Notes Additional Closing Date, as applicable, in accordance with this Agreement form and such other information as it may reasonably requestsubstance acceptable to the Initial Purchasers.
(xviih) Xxxxxx Xxxxxx & XxxxxxxThe Initial Purchasers shall have received, counsel on each of the date hereof and the Closing Date or the Additional Closing Date, as the case may be, a letter dated the date hereof or the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 from Ernst & Young LLP, independent public accountants, containing statements and in order to evidence the accuracy, completeness or satisfaction in all material respects of any information of the representationstype ordinarily included in accountants’ “comfort letters” to the initial purchasers with respect to the financial statements and certain financial information contained in, warranties or conditions contained in this Agreementincorporated by reference into, the Time of Sale Information and the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(xviiii) The Original Notes Initial Purchasers shall have received, on each of the date hereof and the Closing Date or the Additional Closing Date, as the case may be, a certificate of the chief financial officer of the Company, dated the date hereof or the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers.
(j) The Securities shall be eligible for trading in the Portal market upon issuanceclearance and settlement through DTC.
(xixk) All agreements set forth The “lock-up” agreements, each substantially in the representation letter form of Exhibit A hereto, between you and certain shareholders, officers and directors of the Issuers to DTC Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the approval date hereof, shall be full force and effect on the Closing Date or Additional Closing Date, as the case may be.
(l) Substantially concurrently with the delivery of the Notes by DTC for "book-entry" transfer shall have been complied with. If any Underwritten Securities, the issuance and sale of the conditions specified Shares (as that term is defined in this Section 8 that certain purchase agreement, dated as of November 20, 2014, between the Company, Invus, L.P., Invus C.V. and Artal International S.C.A. (athe “Purchase Agreement”)) shall not have been fulfilled in all material respects when be consummated pursuant to the terms and as required by this Agreement to be fulfilled (or waived by conditions of the Initial Purchasers), this Agreement may be terminated by Purchase Agreement. The several obligations of the Initial Purchasers on notice to purchase Option Securities hereunder are subject to the Company at any time at or prior delivery to you on the applicable Additional Closing Date of such documents as you may reasonably request with respect to the Closing Date, and such termination shall be without liability good standing of any party to any other party. Notwithstanding any such terminationthe Company, the provisions due authorization and issuance of Sections 4(f), 6, 7, 9, 10 the Option Securities to be sold on such Additional Closing Date and 11(d) shall remain in effectother matters related to the issuance of such Option Securities.
Appears in 1 contract
Samples: Purchase Agreement (Lexicon Pharmaceuticals, Inc./De)
