Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company and the Subsidiary Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions: (a) The Initial Purchaser shall not have discovered and disclosed to the Company 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 Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial Purchaser, is material or 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. (b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) Kaye Xxxxxxx XXX shall have furnished to the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that: (i) The Company and each of its Subsidiaries have been duly incorporated and is validly existing in good standing under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective
Appears in 1 contract
Samples: Purchase Agreement (Spanish Broadcasting System Inc)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser hereunder are subject to the accuracy, when made and on the Closing Date, accuracy in all material respects of the representations and warranties on the part of the Company contained herein, on the date hereof and at the time of purchase. The obligations of the Initial Purchaser at the additional time of purchase are subject to the accuracy in all material respects of the representations and warranties on the part of the Company on the date hereof, at the time of purchase (unless previously waived) and at the additional time of purchase, as the case may be. Additionally, the obligations of the Initial Purchaser hereunder are subject to performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchaser Company shall not have discovered furnish to you at the time of purchase and disclosed to at the Company on or prior to additional time of purchase, as the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains case may be, an untrue statement of a fact which, in the opinion of Clifxxxx Xxxnce Rogexx & Xellx XXXClifford Chance US LLP, counsel for the Initial PurchaserCompany, is material addressed to thx Xxxxxxl Purchaser and dated the date of the time of purchase or omits to state a fact whichthe date of the additional time of purchase, in as the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandumcase may be, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be in form reasonably satisfactory in all material respects to counsel for the Initial Purchaser, substantially in the form of EXHIBIT A hereto;
(b) The Company shall furnish to you at the time of purchase and at the Company additional time of purchase, as the case may be, one or more opinions of Brobeck, Phleger & Harrison LLP, patent and litigation counsel for thx Company, addxxxxxx xo the Subsidiary Guarantors shall have furnished Initial Purchaser and dated the date of the time of purchase or the date of the additional time of purchase, as the case may be, and in form reasonably satisfactory to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.for the Initial Purchaser, substantially in the form of EXHIBIT B hereto;
(c) Kaye Xxxxxxx XXX The Company shall have furnished furnish to you at the Initial Purchaser its written opiniontime of purchase and at the additional time of purchase, as counsel to the case may be, an opinion of Warner R. Broaddus, General Counsel of the Company, addressed to the Initial Purchaser Xxxxxaser and dated the Closing Datedate of the time of purchase or the date of the additional time of purchase, as the case may be, and in form reasonably satisfactory to counsel for the Initial Purchaser, substantially in the form of EXHIBIT C hereto;
(d) You shall have received on the date of this Agreement from each of Deloitte & Touche LLP and Ernst & Young LLP and at the time of purchase and the additional time of purchase, as the case may be, from Deloitte & Touche LLP customary comfort letters dated as of the date of this Agreement, the date of the time of purchase and the date of the additional time of purchase, as the case may be, and addressed to the Initial Purchaser, in form and substance reasonably satisfactory to counsel for the Initial Purchaser;
(e) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Dewey Ballantine LLP, counsel for the Initial Purchaser, dated txx xxxx xx xxx xime of purchase or the date of the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to you;
(f) At the time of purchase or the additional time of purchase, as the case may be, 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;
(g) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, (i) no material and unfavorable change, financial or otherwise, in the operations, business, prospects or condition of the Company and its Subsidiaries, taken as a whole, shall occur or become known and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of its Subsidiaries;
(h) The Company shall, at the time of purchase and the additional time of purchase, as the case may be, deliver to you a certificate dated such date of an executive officer of the Company to the effect that:set forth in Sections 7 (f), (g) and (l), that the representations and warranties of the Company set forth in this Agreement are true and correct as of such date, and that the Company has complied with all of its agreements and satisfied all of the conditions on its part to be performed or satisfied on or before such date.
(i) You shall have received, at the time of purchase, copies, duly executed by the Company and the other parties thereto (other than the Initial Purchaser, if applicable), of the Registration Rights Agreement, Pledge Agreement, Control Agreement and the Indenture and, at the additional time of purchase, if applicable, copies, duly executed by the Company and the other parties thereto, of the Supplemental Pledge Agreement, as described in the Pledge Agreement;
(j) The Company shall have furnished to you such other documents and each certificates as to the accuracy and completeness of its Subsidiaries any statement in the Final Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as you may reasonably request;
(k) The Notes shall have been duly incorporated designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase; and
(l) Between the time of execution of this Agreement and the time of purchase or additional 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) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company or any Subsidiary of the Company by any "nationally recognized statistical rating organization", as that term is validly existing defined in good standing Rule 436(g)(2) promulgated under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveSecurities Act.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the each Initial Purchaser to purchase and pay for the Securities that it has severally agreed to purchase hereunder are subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties of the Company contained hereinherein and in certificates of any officer of the Company and any Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to the Company on or prior to At the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement Time, each of you shall have received a fact which, in the signed opinion of Clifxxxx Xxxnce Rogexx each of Xxxxxxxx & Xellx XXXXxxxxxxx, counsel for the Initial PurchaserCompany, is material or omits to state a fact whichand Xxxxxx Xxxxxxxx, General Counsel of the Company, in each case dated as of the Closing Time, in substantially the form attached hereto as Exhibit B-1. Such opinion of shall be to such counsel, is material and is required further effect with respect to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions sale of the Securities pursuant to this Agreement as counsel for the Initial Purchasers may reasonably request. 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 opinions of other counsel, who shall be counsel satisfactory to counsel for the Initial Purchasers, in which case the opinion shall state that they believe you are entitled to so rely. 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; PROVIDED that such certificates have been delivered to the Initial Purchasers.
(b) At the Closing Time, each of you shall have received a signed opinion of Xxxxxxx, counsel to BEAH(UK), dated as of 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 you shall have received the favorable opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, dated as of the Closing Time, to the effect that the opinions delivered pursuant to Sections 5(a) and 5(b) appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by you, 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 you may require. 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 you. 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; PROVIDED that such certificates have been delivered to the Initial Purchasers.
(d) At the Closing Time, (i) the Offering Memorandum, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum, any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Offering Memorandum other than as set forth therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before or by any government, governmental instrumentality or court, domestic or foreign, that could result in any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, other than as set forth in the Offering Memorandum, (iv) the Company shall have in all material respects complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, (v) no event of default shall exist under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or to which the Company or any Subsidiary is subject except as such would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as enterprise and (vi) the other representations and warranties of the Company set forth herein shall be accurate in all material respects as though expressly made at and as of the Closing Time. At the Closing Time, each of you shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the Company, each of you shall have received from Deloitte & Touche L.L.P., independent auditors for the Company, a letter, dated such a date, in form and substance satisfactory to you.
(f) At the Closing Time, each of you shall have received from Deloitte & Touche L.L.P. a letter, in form and substance satisfactory to you and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 5(e), except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(g) At the Closing Time, counsel for the Initial Purchasers shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated hereby in this Agreement and the matters referred to in Section 5(d) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Securities as contemplated in this Agreement shall be reasonably satisfactory in all material respects form and substance to the Initial Purchasers and to counsel for the Initial PurchaserPurchasers.
(h) Subsequent to the execution and delivery of this Agreement, and there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX shall have furnished to Subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Initial Purchaser Purchasers, including CS First Boston, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its written opinionrating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as counsel to would, in the Company, addressed to judgment of a majority in interest of the Initial Purchaser and dated Purchasers, including CS First Boston, be likely to prejudice materially the Closing Datesuccess of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the Nasdaq National Market or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in form and substance reasonably satisfactory to the judgment of a majority in interest of the Initial PurchaserPurchasers, to including CS First Boston, the effect that:of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Securities.
(i) The Company and each of its Subsidiaries At the Closing Time, the Registration Rights Agreement shall have been duly incorporated fully executed and is validly existing be in good standing under full force and effect.
(j) At the laws Closing Time, the Initial Purchasers shall have received a certificate of their respective jurisdictions the Chief Financial Officer of incorporationthe Company as to certain agreed upon line items contained in the Offering Memorandum. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement, each is duly qualified this Agreement may be terminated by you on notice to do business the Company at any time at or prior to the Closing Time, and are such termination shall be without liability of any party to any other party, except as provided in good standing Section 4. Notwithstanding any such termination, the provisions of Sections 1 (insofar as a foreign corporation Section 7 provides for the survival of such representations or warranties), 6 and 7 shall remain in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveeffect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinon the date hereof and at the time of purchase. The several obligations of the Initial Purchasers at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase and at the additional time of purchase, as the case may be. Additionally, the several obligations of the Initial Purchasers are subject to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, hereunder and to each of the following additional terms and conditionsconditions precedent:
(a) The Initial Purchaser Purchasers shall not have discovered received at the time of purchase and disclosed at the additional time of purchase, as the case may be, an opinion of Xxxxxx & Xxxxxx, L.L.P., counsel for the Company, substantially in the form of Exhibit A hereto, addressed to the Company on Initial Purchasers and dated the date of the time of purchase or prior the additional time of purchase, as the case may be.
(b) The Initial Purchasers shall have received at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Xxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary to the Closing Date that Company, substantially in the Offering form of Exhibit B hereto, addressed to the Initial Purchasers and dated the date of the time of purchase or the additional time of purchase, as the case may be.
(c) The Initial Purchasers shall have received at the time of purchase and at the additional time of purchase, as the case may be, from Ernst & Young LLP customary comfort letters dated, respectively, as of the date of the time of purchase or the additional time of purchase, as the case may be, and addressed to the Initial Purchasers, which letters shall cover the various financial disclosures contained in the Preliminary Memorandum or any amendment or supplement thereto contains an untrue statement of a fact whichand the Final Memorandum, in the form and substance heretofore approved by Xxxxxx Xxxxxxx and Xxxxx Xxxxx L.L.P., counsel to the Initial Purchasers.
(d) The Initial Purchasers shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Clifxxxx Xxxnce Rogexx & Xellx XXXXxxxx Xxxxx L.L.P., counsel for the Initial PurchaserPurchasers, is material dated the date of the time of purchase or omits to state a fact which, in the opinion additional time of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX shall have furnished to the Initial Purchaser its written opinionpurchase, as counsel to the Company, addressed to the Initial Purchaser and dated the Closing Datecase may be, in form and substance reasonably satisfactory to you.
(e) No amendment or supplement to the Preliminary Memorandum or the Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in the Preliminary Memorandum or the Final Memorandum, shall at any time have been made or filed to which the Initial PurchaserPurchasers have reasonably objected in writing.
(f) At the time of purchase or the additional time of purchase, as the case may be, neither the Preliminary Memorandum, when taken together with the Term Sheet, nor the Final Memorandum, and no amendment or supplement to either Memorandum, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the effect that:statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Between the time of execution of this Agreement and the time of purchase, or an additional time of purchase, as the case may be, there shall not have occurred or become known any material and unfavorable change, financial or otherwise, in the business, properties, management, conditions, business prospects or results of operations of the Company and its subsidiaries, taken as a whole, that in the judgment of the Initial Purchasers makes it impracticable or inadvisable to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated by the Preliminary Memorandum and the Final Memorandum.
(h) The Company will, at the time of purchase and, if applicable at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer in the form attached as Exhibit C hereto.
(i) You shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and the Indenture.
(j) The Company shall have furnished to you such other documents and each certificates as to the accuracy and completeness of its Subsidiaries any statement in the Preliminary Memorandum and the Final Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as you may reasonably request.
(k) The Notes shall be included in the book-entry settlement system of the DTC and designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase.
(l) Between the time of execution of this Agreement and the time of purchase or additional time of purchase, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been duly incorporated and is validly existing given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in good standing under the laws rating accorded any securities of their respective jurisdictions of incorporationor guaranteed by the Company by Xxxxx’x Investor Services, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership Inc. or lease of property or the conduct of their respectiveStandard & Poor’s Rating Services.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties and agreements of the Company contained herein, to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to No stop order suspending the Company on offer or prior to sale of the Closing Date that Offered Notes or the use of the Preliminary Offering Memorandum or the Offering Memorandum or any amendment part thereof in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or supplement thereto contains an untrue statement shall be pending or threatened by any court or governmental agency or body having jurisdiction over the Company or any of a fact which, in the opinion of Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial Purchaser, is material or 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 misleadingSubsidiaries.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby hereby, shall be reasonably satisfactory in all material respects to counsel for the Initial Purchaser, Purchasers and their counsel; and the Company and the Subsidiary Guarantors shall have furnished to such counsel the Initial Purchasers all documents (including, without limitation, evidence of the permission of the Bermuda Monetary Authority under the Exchange Control Regulations 1973) and information that they and their counsel may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX Sxxxxxxx & Cxxxxxxx LLP shall have furnished to the Initial Purchaser Purchasers its written opinion, as U.S. counsel to the Company, addressed to the Initial Purchaser Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers, to the effect set forth in Exhibit B hereto.
(d) Cxxxxxx Dxxx & Pxxxxxx shall have furnished to the Initial Purchasers its written opinion, as Bermuda 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 set forth in Exhibit C hereto.
(e) Dxxxx Xxxxxxx, Esq., general counsel to Intelsat Global Service Corporation, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit D hereto.
(f) Wiley, Rein & Fielding LLP shall have furnished to the Initial Purchasers its written opinion, as special FCC 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 set forth in Exhibit E hereto.
(g) Sxxxxxxxx and May shall have furnished to the Initial Purchasers its written opinion, as United Kingdom 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 set forth in Exhibit F hereto.
(h) The Initial Purchasers shall have received from Milbank, Tweed, Hxxxxx & MxXxxx LLP, counsel for the Initial Purchasers, such opinion dated the Closing Date, with respect to the issuance and sale of the Offered Notes, the Offering Memorandum and other related matters and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(i) At the time of execution of this Agreement, the Initial Purchasers shall have received from KPMG 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 accountants with respect to the Company within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (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 and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) At the time of execution of this Agreement, the Initial Purchasers shall have received from Gxxxx Xxxxxxxx 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 accountants with respect to Loral and Loral Transferred Satellites within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (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 and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(k) With respect to the letters of KPMG LLP and Gxxxx Xxxxxxxx LLP referred to in the preceding two paragraphs and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial letters”), the Initial Purchasers shall have received letters (the “bring-down letters”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent accountants with respect to the Company, in the case of KPMG LLP, and Loral and Loral Transferred Satellites, in the case of Gxxxx Xxxxxxxx LLP, within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (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 and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(l) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its Chief Executive Officer, its President or a Senior Vice President and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 2 of this Agreement are true and correct as of such Closing Date and the Company has complied with all its agreements contained herein;
(ii) They have carefully examined the Offering Memorandum and, to their knowledge and in their opinion, as of the Closing Date, the 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 statements therein, in the light of the circumstances in which they were made, not misleading; and
(iii) Neither the Company nor any of the Subsidiaries has sustained since December 31, 2002 any material 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 and since December 31, 2002, there has not been any change in the share capital or increase in long-term debt of the Company or any of the Subsidiaries or any material adverse change, or any development that the Company has reasonable cause to believe will involve a prospective change, in or affecting the financial position, shareholders’ equity or results of operations of the Company and each the Subsidiaries considered as one enterprise, otherwise than as set forth in the Offering Memorandum.
(m) Subsequent to the execution and delivery of this Agreement (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) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its Subsidiaries rating of any of the Company’s debt securities.
(n) 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, on 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 duly incorporated 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 U.S. 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) including, without limitation, as a result of terrorist activities after the date hereof, in each case so as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with the offering or delivery of the Offered Notes being delivered on such Closing Date on the terms and is validly existing in good standing under the laws of their respective jurisdictions of incorporationmanner contemplated in the Offering Memorandum.
(o) The Registration Rights Agreement shall have been executed by the Company on or before the Closing Date. All opinions, each is duly qualified letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to do business and be in compliance with the provisions hereof only if they are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or form and substance reasonably satisfactory to counsel for the conduct of their respectiveInitial Purchasers.
Appears in 1 contract
Samples: Purchase Agreement (Intelsat LTD)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the each Initial Purchaser to purchase and pay for the Securities that it has severally agreed to purchase hereunder are subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties of the Company contained hereinherein and in certificates of any officer of the Company and any Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to the Company on or prior to At the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement Time, each of you shall have received a fact which, in the signed opinion of Clifxxxx Xxxnce Rogexx each of Shearman & Xellx XXXSterling, counsel for the Initial PurchaserCompany, is material or omits to state a fact whichand Xxxxxx Xxxxxxxx, General Counsel of the Company, in each case dated as of the Closing Time, in substantially the form attached hereto as Exhibit B-1. Such opinion of shall be to such counsel, is material and is required further effect with respect to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions sale of the Securities pursuant to this Agreement as counsel for the Initial Purchasers may reasonably request. 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 opinions of other counsel, who shall be counsel satisfactory to counsel for the Initial Purchasers, in which case the opinion shall state that they believe you are entitled to so rely. 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; provided that such certificates have been delivered to the Initial Purchasers.
(b) At the Closing Time, each of you shall have received a signed opinion of Xxxxxx Xxxxx Xxxxxxx, counsel to BEAH(UK), dated as of 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 you shall have received the favorable opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, dated as of the Closing Time, to the effect that the opinions delivered pursuant to Sections 5(a) and 5(b) appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by you, 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 you may require. 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 you. 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; provided that such certificates have been delivered to the Initial Purchasers.
(d) At the Closing Time, (i) the Offering Memorandum, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum, any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Offering Memorandum other than as set forth therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before or by any government, governmental instrumentality or court, domestic or foreign, that could result in any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, other than as set forth in the Offering Memorandum, (iv) the Company shall have in all material respects complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, (v) no event of default shall exist under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or to which the Company or any Subsidiary is subject except as such would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as enterprise and (vi) the other representations and warranties of the Company set forth herein shall be accurate in all material respects as though expressly made at and as of the Closing Time. At the Closing Time, each of you shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the Company, each of you shall have received from Deloitte & Touche L.L.P., independent auditors for the Company and PBASCO, a letter, dated such date, in form of Exhibit C-1 hereto.
(f) At the time that this Agreement is executed by the Company, each of you shall have received from Zalick, Torok, Kirgesner & Co., independent auditors for SMR, a letter, dated such date in the form of Exhibit C-2 hereto.
(g) At the time that this Agreement is executed by the Company, each of you shall have received from Xxxx, Xxxxxxx & Xxxxxx, P.A., independent auditors for AMP, a letter in the form of Exhibit C-3 hereto.
(h) At the Closing Time, each of you shall have received from each of Deloitte & Touche L.L.P., Zalick, Torok, Kirgesner, Xxxx & Co. and Xxxx, Xxxxxxx & Xxxxxx, P.A. letters, in form and substance satisfactory to you and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to Sections 5(e) through 5(g), as the case may be, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(i) Prior to the Closing Time, the Company shall have obtained consents from the lenders under its Bank Credit Facility which permits the Stock Repurchase as described in the Offering Memorandum under "Use of Proceeds" and such consents shall be binding on the Company.
(j) At the Closing Time, each of you shall have received a certificate regarding the financial data and information relating to XX Xxxxxx from an officer of the Company or from an official of the Company who has responsibility for financial and accounting matters in a form to be agreed upon by the Company and Xxxxxxx Xxxxx.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Time, there shall not have been any downgrading in the rating accorded any of the Company's securities, including the Securities, by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act, nor shall such rating organization have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's securities, including the Securities.
(l) At the Closing Time, counsel for the Initial Purchasers shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated hereby in this Agreement and the matters referred to in Section 5(d) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Securities as contemplated in this Agreement shall be reasonably satisfactory in all material respects form and substance to the Initial Purchasers and to counsel for the Initial Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersPurchasers.
(cm) Kaye Xxxxxxx XXX At the Closing Time, the Registration Rights Agreement shall have furnished been fully executed and be in full force and effect. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by you on notice to the Initial Purchaser its written opinion, as counsel Company at any time at or prior to the CompanyClosing Time, addressed and such termination shall be without liability of any party to any other party, except as provided in Section 4. Notwithstanding any such termination, the Initial Purchaser provisions of Sections 1 (insofar as Section 8 provides for the survival of such representations or warranties), 6, 7 and dated the Closing Date, 8 shall remain in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that:
(i) The Company and each of its Subsidiaries have been duly incorporated and is validly existing in good standing under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveeffect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, accuracy in all material respects of the representations and warranties on the part of the Company contained herein, on the date hereof and at the time of purchase. The several obligations of the Initial Purchasers at the additional time of purchase are subject to the accuracy in all material respects of the representations and warranties on the part of the Company on the date hereof, at the time of purchase (unless previously waived) and at the additional time of purchase, as the case may be. Additionally, the several obligations of the Initial Purchasers hereunder are subject to performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchaser Company shall not have discovered furnish to UBS at the time of purchase and disclosed to at the Company on or prior to additional time of purchase, as the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains case may be, an untrue statement of a fact which, in the opinion of Clifxxxx Xxxnce Rogexx & Xellx XXXXxxxxx and Xxxxx, LLP, counsel for the Initial Purchaser, is material or 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.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX shall have furnished to the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser Purchasers and dated the Closing Datedate of the time of purchase or the date of the additional time of purchase, as the case may be, and in form reasonably satisfactory to counsel for the Initial Purchasers, in the form as set forth in Exhibit A hereto;
(b) UBS shall have received on the date of this Agreement, at the time of purchase and the additional time of purchase, as the case may be, from Xxxx & Associates, L.L.P. customary comfort letters dated as of the date of this Agreement, the date of the time of purchase and the date of the additional time of purchase, as the case may be, and addressed to the Initial Purchasers, in form and substance satisfactory to counsel for the Initial Purchasers;
(c) UBS shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Xxxxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the date of the time of purchase or the date of the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the Initial Purchaser, UBS;
(d) No amendment or supplement to the effect that:Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in the Final Memorandum, shall at any time have been made or filed to which UBS has reasonably objected in writing;
(e) At the time of purchase or the additional time of purchase, as the case may be, 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;
(f) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, (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 the Company and the Subsidiaries, taken as a whole, shall occur or become known and (ii) no transaction which is material and unfavorable to the Company (other than as disclosed in the Final Memorandum) shall have been entered into by the Company or any of the Subsidiaries which would, in UBS' judgment 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 Final Memorandum;
(g) The Company will, at the time of purchase and, if applicable at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer in the form attached as Exhibit C hereto;
(h) You shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and the Indenture;
(i) Each executive officer and director of the Company shall have entered into Lock-Up Agreements in the form attached as Exhibit B hereto on or prior to the date hereof, and each such Lock-Up Agreement shall have been delivered to you and shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be;
(j) The Company shall have furnished to you such other documents and each certificates as to the accuracy and completeness of its Subsidiaries any statement in the Final Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as you may reasonably request;
(k) The Notes shall have been duly incorporated designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase;
(l) The Company shall have furnished to the Initial Purchasers, at the time of purchase and is validly existing at the additional time of purchase, as the case may be, a letter from XxXxxxx addressed to the Initial Purchasers, in good standing under form and substance reasonably satisfactory to counsel for the laws Initial Purchasers, confirming certain matters relating to the Reserve Reports and the information with respect to the oil and gas reserves of their respective jurisdictions of incorporation, each is duly qualified to do business and are the Company included in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveMemorandum.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder to purchase the Notes on the Closing Date are subject to the accuracy, when made and on the Closing Date, of following conditions:
(a) the representations and warranties of the Company Issuer contained hereinherein are true and correct on and as of the date of this Agreement, to the performance by the Company Time of Sale and the Subsidiary Guarantors Closing Date as if made on and as of their respective obligations hereunderthe date hereof, the Time of Sale or the Closing Date; the representations and to warranties of each of the following additional terms Guarantors contained herein are true and conditions:
(a) The Initial Purchaser correct on and as of the date of this Agreement, the Time of Sale and the Closing Date as if made on and as of the date hereof, the Time of Sale and the Closing Date; the statements of the Issuer or any of the Issue Date Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall not be true and correct on and as of the Closing Date; the Issuer and the Issue Date Guarantors shall have discovered complied with all material agreements and disclosed all conditions on their part to the Company on be performed or satisfied hereunder at 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 Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial Purchaser, is material or 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.Date;
(b) All corporate proceedings except as disclosed in the Time of Sale Information and other legal matters incident the Offering Memorandum, (i) with respect to the authorizationPost-Completion Guarantors, form since the date of the most recent consolidated financial statements of the Target and validity its subsidiaries included in each of this Agreement, the 2009 Notes, the Registration Rights Agreement Time of Sale Information and the Offering Memorandum, and all other legal matters relating (ii) with respect to this Agreement the Issuer and the transactions contemplated hereby Issue Date Guarantors, since their respective dates of incorporation, there shall not have been any change in the capital stock or long-term debt of the Issuer, the Guarantors, or any of their respective subsidiaries or any material adverse change or any development which would reasonably be reasonably satisfactory expected to result in all material respects a Material Adverse Effect, the effect of which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to counsel for proceed with the Initial Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.Offering;
(c) Kaye Xxxxxxx XXX as of the Closing Date and at any time subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have furnished occurred in the rating accorded the Notes or any other debt securities or preferred stock issued or guaranteed by the Issuer or the Target or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange 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 Notes or of any other debt securities or preferred stock issued or guaranteed by the Issuer or the Target or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading);
(d) the Initial Purchasers shall have received on and as of the Closing Date, a certificate of an officer or director of the Issuer, with specific knowledge about financial matters of the Issuer and its subsidiaries, reasonably satisfactory to the Initial Purchaser its written opinionPurchasers to the effect set forth in paragraphs (a), (b) and (c) of this Section 5;
(e) the Issuer shall have requested and caused Xxxxxxxx & Xxxxx International LLP, as United States counsel for the Issuer and the Issue Date Guarantors, to the Company, addressed furnish to the Initial Purchaser Purchasers its written opinion and Rule 10b-5 disclosure letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers;
(f) the Issuer shall have requested and caused Xxxxxxxx & Xxxxx International LLP, as English counsel for the Issuer and the Issue Date Guarantors, to furnish to the effect that:Initial Purchasers its written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers;
(g) the Issuer shall have requested and caused Xxxxxx Xxx, as Irish counsel for the Issuer and the Issue Date Guarantors, to furnish to the Initial Purchasers its written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers;
(h) the Initial Purchasers shall have received opinions, dated the Closing Date, of local counsels to the Issuer and the Issue Date Guarantors in the jurisdictions set forth in Schedule IV hereto, in form and substance reasonably satisfactory to the Initial Purchasers;
(i) The Company on the Offering Memorandum Date and on the Closing Date, KPMG LLP shall have furnished to the Initial Purchasers letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and certain financial information contained in each of the Time of Sale Information and the Offering Memorandum;
(j) the Initial Purchasers shall have received on and as of the Closing Date (i) an opinion and Rule 10b-5 disclosure letter from Xxxxxx & Xxxxxxx (London) LLP, as United States counsel for the Initial Purchasers and (ii) an opinion from Xxxxxx & Xxxxxxx (London) LLP, as English counsel for the Initial Purchasers, and, in each case, the Issuer and the Issue Date Guarantors shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters;
(k) the Initial Purchasers shall have received on and as of the Closing Date an opinion from A&L Goodbody, as Irish counsel for the Initial Purchasers, and the Issuer and the Issue Date Guarantors shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters;
(l) the Initial Purchasers shall have received on and as of the Closing Date an opinion from NautaDutilh, as Luxembourg counsel for the Initial Purchasers, and the Issuer and the Issue Date Guarantors shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters;
(m) the Dollar Notes shall be eligible for clearance and settlement through the facilities of DTC, and the Euro Notes shall be eligible for clearance and settlement through the facilities of Euroclear and Clearstream;
(n) the Indenture (in form and substance satisfactory to the Initial Purchasers) shall have been duly executed and delivered by the Issuer, each of the Issue Date Guarantors and the Trustee on the Closing Date and shall be in full force and effect on such date and the Notes shall have been duly executed and delivered by the Issuer and each of its Subsidiaries the Issue Date Guarantors and duly authenticated by the Trustee on the Closing Date;
(o) the Security Documents (in form and substance satisfactory to the Initial Purchasers) shall have been duly incorporated executed and is validly existing delivered by the parties thereto, the security interests created pursuant thereto shall be effective and the Security Agent shall hold a valid and perfected security interest in good standing under the laws Collateral securing the obligations of their respective jurisdictions the Issuer and the other entities party thereto, as applicable, in each case, for the benefit of incorporationthe Trustee and the benefit of holders of the Securities on or prior to, and as of, the Closing Date, subject in each case to the Agreed Security Principles and such subsequent perfection of security pursuant to applicable law or the provisions of the relevant Security Documents;
(p) the Intercreditor Agreement shall have been duly authorized, executed and delivered by the parties which are intended to become parties thereto on or prior to the Closing Date;
(q) each of the Escrow Agreement and the Escrow Equity Commitment (in form and substance reasonably satisfactory to the Initial Purchasers) shall have been duly executed and delivered by the parties thereto and shall be in full force and effect at the Closing Date;
(r) on or prior to the Closing Date, the Issuer shall have furnished to the Initial Purchasers executed copies, in all respects reasonably satisfactory to the Initial Purchasers, of the Transaction Documents;
(s) on or prior to the Closing Date, each is duly qualified of the Issuer and the Issue Date Guarantors shall have furnished or caused to do business be furnished to the Initial Purchasers on the Closing Date a certificate signed by an officer or a member of the board of directors (or equivalent body) of such Issuer or Issue Date Guarantors, dated as of the Closing Date, in form and are substance satisfactory to the Initial Purchasers (an “Officer’s Certificate”) and which shall include the following documents: (i) a copy of the constitutional documents of such Issuer or Guarantor, (ii) a copy of the resolutions of the board of directors or equivalent body relating to the Notes and the Guarantees (including entry into this Agreement and the related documents for the offering of the Notes), (iii) a specimen of the signature of persons authorized by the resolution referred to in good standing clause (ii) above and (iv) a letter of appointment for an agent of service of process relating to the Indenture and this Agreement; and
(t) on or prior to the Closing Date, the Issuer shall have furnished to the Initial Purchasers such further certificates and documents as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveInitial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement
Conditions of Initial Purchasers’ Obligations. The respective obligations obligation of the each Initial Purchaser to purchase and pay for the Securities that it has severally agreed to purchase hereunder are is subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties of the Company contained hereinherein and in certificates of any officer of the Company and the Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to the Company on or prior to At the Closing Date that Time, each of the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of Initial Purchasers shall have received a fact which, in the signed opinion of Clifxxxx Xxxnce Rogexx Eckexx Xxxmxxx Xxxxxx & Xellx XXXXellxxx, XXC, counsel for the Initial PurchaserCompany, is material or omits to state a fact whichdated as of the Closing Time, in substantially the form attached hereto as Exhibit C-1. Such opinion of shall be to such counsel, is material and is required further effect with respect to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 sale of the Securities pursuant to this Agreement as counsel for the Initial PurchaserPurchasers may reasonably request.
(b) At the Closing Time, each of the Initial Purchasers shall have received a signed opinion of Reed Xxxxx Xxxx & McClxx, XXC counsel to the Company, dated as of the Closing Time, in substantially the form attached hereto as Exhibit C-2. Such opinion shall be to such further effect with respect to other legal matters relating to this Agreement and the Company and sale of the Subsidiary Guarantors shall have furnished Securities pursuant to such this Agreement as counsel all documents and information that they for the Initial Purchasers may reasonably request to enable them to pass upon such mattersrequest.
(c) Kaye Xxxxxxx XXX At the Closing Time, each of the Initial Purchasers shall have received the favorable opinion of Schuxxx Xxxh & Zabex XXX, counsel for the Initial Purchasers, dated as of the Closing Time, to the effect that the opinions delivered pursuant to Sections 5(a) and 5(b) 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 Exchange Indenture, the Registration Rights Agreements, the Offering Memorandum and such other related matters as the Initial Purchasers may require.
(d) 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 Agreement and as of the Closing Time, in form and substance satisfactory to the Initial Purchasers, confirming that they are independent public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations thereunder, 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.
(e) The Company shall have furnished to the Initial Purchaser its written opinionPurchasers a certificate, as counsel to signed by the Chief Executive Officer and the principal financial officer of the Company, addressed to the Initial Purchaser and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserTime, to the effect that the signers of such certificate have examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Time with the same effect as if made at the Closing Time, the Offering Memorandum, as it may then be amended or supplemented, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company has complied with all the agreements and satisfied all the conditions under this Agreement on its part to be performed or satisfied at or prior to the Closing Time; and
(ii) since the respective dates as of which information is given in the Offering Memorandum (exclusive of any amendments or supplements thereto), neither the Company nor the Subsidiary has sustained any material loss or interference with its respective business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, results of operations, financial condition or properties of the Company and each of its Subsidiaries have been duly incorporated and is validly existing in good standing under the laws of their respective jurisdictions of incorporationSubsidiary, each is duly qualified to do business and are in good standing taken as a foreign corporation whole, except in each jurisdiction case as described in which their respective ownership or lease contemplated by the Offering Memorandum (exclusive of property any amendment or supplement thereto). As used in this subparagraph, the conduct term "Offering Memorandum" means the Offering Memorandum in the form first used to confirm sales of their respectivethe Securities.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, accuracy in all material respects of the representations and warranties on the part of the Company contained herein, on the date hereof and at the time of purchase. The several obligations of the Initial Purchasers at the additional time of purchase are subject to the accuracy in all material respects of the representations and warranties on the part of the Company on the date hereof, at the time of purchase (unless previously waived) and at the additional time of purchase, as the case may be. Additionally, the several obligations of the Initial Purchasers hereunder are subject to performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Company shall furnish to the Initial Purchaser shall not have discovered Purchasers at the time of purchase and disclosed at the additional time of purchase, as the case may be, the following opinions of counsel to the Company on or prior addressed to the Closing Date that Initial Purchasers and dated the Offering Memorandum date of the time of purchase or any amendment or supplement thereto contains an untrue statement the date of a fact whichthe additional time of purchase, as the case may be, and in the opinion of Clifxxxx Xxxnce Rogexx & Xellx XXX, form reasonably satisfactory to counsel for the Initial PurchaserPurchasers:
(i) opinions of Porter & Hedges, is material or omits to state a fact which, in the L.L.P. and Bryan Cave LLP substantially as xxx xortx xx Xxhibit A-1 hexxxx;
(ii) opinion of such counselWood, is material and is required to be stated therein or is necessary to make the statements therein not misleadingPhillips, Katz, Clark & Mortimer substantially as set xxxth xx Xxxxbix X-0 xxxxxo; xxx
(iii) opinion of Fish & Richardson P.C. substantially as set forth in Exhibix X-3 hxxxxx.
(b) All corporate proceedings The Initial Purchasers shall have received on the date of this Agreement, at the time of purchase and other legal matters incident to the authorizationadditional time of purchase, form and validity as the case may be, from KPMG LLP customary comfort letters dated as of the date of this Agreement, the 2009 Notes, date of the Registration Rights Agreement time of purchase and the Offering Memorandumdate of the additional time of purchase, as the case may be, and all other legal matters relating addressed to this Agreement the Initial Purchasers, in form and the transactions contemplated hereby shall be reasonably substance satisfactory in all material respects to counsel for the Initial Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.Purchasers;
(c) Kaye Xxxxxxx XXX The Initial Purchasers shall have furnished to received at the Initial Purchaser its written opiniontime of purchase and at the additional time of purchase, as the case may be, the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to for the CompanyInitiax Xxxxxasers, addressed to dated thx xxxx of xxx time of purchase or the Initial Purchaser and dated date of the Closing Dateadditional time of purchase, as the case may be, in form and substance reasonably satisfactory to the Initial Purchaser, Purchasers;
(d) No amendment or supplement to the effect that:Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in the Final Memorandum, shall at any time have been made or filed to which any of the Initial Purchasers have reasonably objected in writing;
(e) At the time of purchase or the additional time of purchase, as the case may be, 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;
(f) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, (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 the Company and the Subsidiaries, taken as a whole shall occur or become known and (ii) no transaction which is material and unfavorable to the Company (other than as disclosed in the Final Memorandum) shall have been entered into by the Company or any of the Subsidiaries;
(g) The Company will, at the time of purchase and, if applicable at the additional time of purchase, deliver to the Initial Purchasers a certificate of its Chief Executive Officer and its Vice President, Finance and Administration in the form attached as Exhibit C hereto;
(h) The Initial Purchasers shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and the Indenture;
(i) Each executive officer and director of the Company shall have entered into Lock-Up Agreements substantially in the form attached as Exhibit B hereto on or prior to the date hereof, and each such Lock-Up Agreement, or a copy thereof, shall have been delivered to you and shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be;
(j) The Company shall have furnished to the Initial Purchasers such other documents and each certificates as to the accuracy and completeness of its Subsidiaries any statement in the Final Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as the Initial Purchasers may reasonably request; and
(k) The Bonds shall have been duly incorporated and is validly existing in good standing under designated for trading on PORTAL, subject only to notice of issuance at or prior to the laws time of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectivepurchase.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Subsidiary Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchaser shall not have discovered and disclosed to the Company 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 Clifxxxx Xxxnce Rogexx Xxxxxx & Xellx XXXXxxxxxx, counsel for the Initial PurchaserPurchasers, is material or 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 therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notesother Operative Documents, the Registration Rights Agreement 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 PurchaserPurchasers, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX Xxxxxxx & Xxxxxxxx shall have furnished to the Initial Purchaser Purchasers, its written opinion, as counsel to the Company, addressed to the Initial Purchaser Purchasers and dated the Closing Date, in the form attached hereto as Exhibit A.
(d) Xxxxxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have furnished to the Initial Purchasers his written opinion, as General Counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in the form attached hereto as Exhibit B.
(e) The Initial Purchasers shall have received from Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Series A Notes, the Series A Guarantees, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of 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 accordance with professional standards established by the AICPA and in form and substance reasonably satisfactory to the Initial PurchaserPurchasers, addressed to the effect Initial Purchasers (i) confirming that they are independent public accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its interpretation and rulings 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 and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers 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 Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants in accordance with professional standards established by the AICPA, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its interpretation and rulings and (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 and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its Senior Vice President-Finance stating that:
(i) The unaudited financial information included in the column "Acquisitions Historical" in the Offering Memorandum are derived from the accounting records or supporting schedules of each such acquired entity and/or the Company and, to such officer's knowledge, was prepared in accordance with accounting principles generally accepted in the United States of America; and
(ii) The adjustments to EBITDA described in footnote 1 on the Summary Financial Data table contained in the Offering Memorandum are reasonable and, in such officer's opinion or belief, there are no other unusual or non-recurring items affecting the income statement in any of the periods presented that had the effect of increasing EBITDA during any of the periods presented.
(i) The Company and each of its Subsidiaries the Guarantors shall have been duly incorporated and is validly existing in good standing under furnished to the laws Initial Purchasers a certificate, dated the Closing Date, of their respective jurisdictions Chairman of incorporationthe Board, each their respective President or a Vice President and their respective chief financial officer stating that:
(i) The representations and warranties of the Company and the Guarantors in Section 1 are true and correct as of the Closing Date; the Company and the Guarantors have complied with all their agreements contained herein; and the conditions set forth in Sections 7(j) and 7(k) have been fulfilled; and
(ii) They have carefully examined the Offering Memorandum and, in their opinion (A) the Offering Memorandum as of its date and as of the Closing 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 to make the statements therein not misleading, and (B) 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.
(i) Neither the Company 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 material 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 in the documents incorporated therein by reference) 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 of its subsidiaries or any change, or any development involving a prospective change, in or affecting the business, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum (or in the documents incorporated therein by reference), the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes and the Guarantees being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(k) Subsequent to the execution and delivery of this Agreement (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 duly qualified 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.
(l) Subsequent to do business the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the NASDAQ National Market or 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, including without limitation as a result of terrorist activities after the date hereof, or the effect of international conditions on the financial markets in the United States shall be such, as to make it in the case of (iii) or (iv), in the sole judgment of a majority in interest of the several Initial Purchasers, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or form and substance reasonably satisfactory to counsel for the conduct of their respectiveInitial Purchasers.
Appears in 1 contract
Samples: Purchase Agreement (Eer Systems Inc)
Conditions of Initial Purchasers’ Obligations. The respective obligations of each of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on and as of the date hereof and on the Closing Date, Date of the representations and warranties of the Company and each of the Guarantors contained herein, to the performance by the Company and each of the Subsidiary Guarantors of their respective covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchaser Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Time of Sale Information or the Offering Memorandum Memorandum, or any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of Clifxxxx Xxxnce Rogexx Xxxxxx & Xellx XXXXxxxxx L.L.P., counsel for to the Initial PurchaserPurchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein therein, in the light of the circumstances then prevailing, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 NotesSecurities, the Registration Rights Agreement Guarantees, the Operative Documents, the Indenture, the Time of Sale Information 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 PurchaserPurchasers, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX Xxxxx Xxxxx LLP shall have furnished to the Initial Purchaser Purchasers its written opinion, as counsel to the CompanyCompany and the Guarantors, addressed to the Initial Purchaser Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers, substantially in the form of Exhibit A hereto.
(d) Xxxxx Xxxxxxx, General Counsel of the Company, shall have furnished to the Initial Purchasers his written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit B hereto.
(e) The Initial Purchasers shall have received from Xxxxxx & Xxxxxx L.L.P., counsel for the Initial Purchasers, such opinion, dated the Closing Date, with respect to the issuance and sale of the Securities, the Time of Sale Information, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Initial Purchasers shall have received from Deloitte & Touche 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 Commission 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 Time of Sale Information, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) With respect to the letter of Deloitte & Touche LLP, referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Initial Purchasers a “bring-down letter” of such accountants, addressed to the Initial Purchasers and dated the 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, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Time of Sale Information or the Offering Memorandum, as of a date not more than three days prior to the date of the Closing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) Except as described in the Time of Sale Information and the Offering Memorandum, (i) neither the Company, any Guarantor nor any of their respective subsidiaries shall have sustained, since the date of the latest audited financial statements included and incorporated by reference in the Time of Sale Information and the Offering Memorandum, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, there shall not have been any change in the capital stock or long-term debt of the Company, any Guarantor or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the business, properties, prospects, financial condition, stockholders’ equity or results of operations of the Company, the Guarantors and their respective subsidiaries, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Offering Memorandum.
(i) At the time of execution of this Agreement, the Initial Purchasers shall have received from the Company Reservoir Engineer an initial letter (an “initial expert letter”), in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, confirming that they are independent with respect to the Company and stating the conclusions and findings of such firm with respect to matters pertaining to the Company’s use of the reports of proved reserves from the Company Reservoir Engineer.
(j) The Company and each Guarantor shall have furnished or caused to be furnished to the Initial Purchasers dated as of the Closing Date a certificate of the Chief Executive Officer and Chief Financial Officer of the Company and each Guarantor, or other officers satisfactory to the Initial Purchasers, as to such matters as the Representative may reasonably request, including, without limitation, a statement that:
(i) The representations, warranties and agreements of the Company and the Guarantors in Section 3 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) They have examined the Time of Sale Information and the Offering Memorandum, and, in their opinion, (A) the Time of Sale Information, as of the Time of Sale and as of the Closing Date, and the Offering Memorandum, as of its date and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not 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 and (B) since the date of the Time of Sale Information and the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Time of Sale Information and the Offering Memorandum.
(k) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any Guarantor’s debt securities by any “nationally recognized statistical rating organization,” as such term is used in Section 15E of the Exchange 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 issued or guaranteed by the Company or any of the Guarantors (in each case, other than an announcement with positive implications of a possible upgrading).
(l) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company and each of its Subsidiaries the Guarantors.
(m) The Securities shall be eligible for clearance and settlement through DTC.
(n) The Indenture shall have been duly incorporated executed and is validly existing in good standing under delivered by a duly authorized officer of the laws of their respective jurisdictions of incorporationCompany, each is duly qualified of the Guarantors and the Trustee.
(o) The Securities and the notation of guarantees shall be executed by the Company and the Guarantors in substantially the respective forms set forth in the Indenture and the Securities shall be authenticated and delivered by the Trustee in accordance with the Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to do business and be in compliance with the provisions hereof only if they are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or form and substance reasonably satisfactory to counsel for the conduct of their respectiveInitial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, accuracy in all material respects of the representations and warranties on the part of the Company contained herein, on the date hereof and at the time of purchase. The several obligations of the Initial Purchasers at the additional time of purchase are subject to the accuracy in all material respects of the representations and warranties on the part of the Company on the date hereof, at the time of purchase (unless previously waived) and at the additional time of purchase, as the case may be. Additionally, the several obligations of the Initial Purchasers hereunder are subject to performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchaser Company shall not have discovered furnish to Bear Xxxxxxx at the time of purchase and disclosed to at the Company on or prior to additional time of purchase, as the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement case may be, opinions of a fact whichCamner, in the opinion of Clifxxxx Xxxnce Rogexx Xxxxxxx & Xellx XXXPoller, P.A. and Cadwalader Xxxxxxxxxx & Xxxx LLP, counsel for the Initial Purchaser, is material or 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.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX shall have furnished to the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser Purchasers and dated the Closing Datedate of the time of purchase or the date of the additional time of purchase, as the case may be, and in form reasonably satisfactory to counsel for the Initial Purchasers, in the forms as set forth in Exhibits A-1 and A-2 hereto;
(b) Bear Xxxxxxx shall have received on the date of this Agreement, at the time of purchase and the additional time of purchase, as the case may be, from PricewaterhouseCoopers LLC customary comfort letters dated as of the date of this Agreement, the date of the time of purchase and the date of the additional time of purchase, as the case may be, and addressed to the Initial Purchasers, in form and substance satisfactory to counsel for the Initial Purchasers;
(c) Bear Xxxxxxx shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the date of the time of purchase or the date of the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the Initial Purchaser, Bear Xxxxxxx;
(d) No amendment or supplement to the effect that:Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in the Final Memorandum, shall at any time have been made or filed to which Bear Xxxxxxx has reasonably objected in writing;
(e) At the time of purchase or the additional time of purchase, as the case may be, 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;
(f) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, (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 the Company and the Subsidiaries, taken as a whole shall occur or become known and (ii) no transaction which is material and unfavorable to the Company (other than as disclosed in the Final Memorandum) shall have been entered into by the Company or any of the Subsidiaries;
(g) The Company will, at the time of purchase and, if applicable at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer in the form attached as Exhibit C hereto;
(h) You shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and the Indenture;
(i) Each executive officer and director of the Company shall have entered into Lock-Up Agreements in the form attached as Exhibit B hereto on or prior to the date hereof, and each such Lock-Up Agreement shall have been delivered to you and shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be;
(j) The Company shall have furnished to you such other documents and each certificates as to the accuracy and completeness of its Subsidiaries any statement in the Final Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as you may reasonably request;
(k) The Notes shall have been duly incorporated designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase; and
(l) Between the time of execution of this Agreement and the time of purchase or additional 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) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization”, as that term is validly existing defined in good standing Rule 436(g)(2) promulgated under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveSecurities Act.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser hereunder are Purchasers to purchase and pay for the Notes shall be subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company and the Subsidiary Guarantors of their respective obligations hereunder, and to each satisfaction or waiver of the following additional terms and conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to the Company conditions on or prior to the Closing Date that Date:
(a) On the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact whichClosing Date, there shall have been furnished to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers, opinions, each addressed to the Initial Purchasers and dated the Closing Date, of (i) Xxxxxx & Xxxxxxx, counsel for the Company, substantially in the form of Annex I-A hereto, (ii) Xxxxx X. Xxxxxxx, Esq., General Counsel to Xxxxxx Dodge Corporation, substantially in the form of Annex I-B hereto, and (iii) Osler, Haskin & Harcourt, Canadian counsel to the Company, substantially in the form of Annex I-C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion in form and substance satisfactory to the Initial Purchasers, dated as of Clifxxxx Xxxnce Rogexx the Closing Date and addressed to the Initial Purchasers, of Xxxxxxx Xxxxxxx & Xellx XXXXxxxxxxx, counsel for the Initial PurchaserPurchasers, is material or omits with respect to state a fact whichcertain legal matters as you reasonably may request. In rendering such opinion, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx shall have received and may rely upon such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings certificates and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they as it may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX The Initial Purchasers shall have furnished received from Deloitte & Touche LLP, independent accountants, a comfort letter or letters, the first one to be dated the Initial Purchaser its written opinion, as counsel date of this Agreement and the second one to the Company, addressed to the Initial Purchaser and be dated the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers (which comfort letters shall include reference to the performance of a review conducted in accordance with the American Institute of Certified Public Accountants' Statements on Standards for Accounting and Review Services on the consolidated financial statements of the Company for the year ended December 31, 1997).
(d) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the officers of the Company made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct as of the date made and on and as of the Closing Date; and the Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) The Initial Purchasers shall have received a certificate of the Company executed by (i) the president or any vice president and (ii) the chief financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(A) The representations and warranties of the Company in this Agreement are true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except to the extent such representations or warranties specifically relate to an earlier date and time) and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement on or prior to the Closing Date;
(B) Each of the respective signers of the certificate has carefully examined the Final Memorandum; in his opinion and to the best of his knowledge, neither the Final Memorandum nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(C) At the Closing Date, since the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement after the date hereof), there has not occurred any event or events that, individually or in the aggregate, would have a Material Adverse Effect (except as disclosed in or contemplated by the Final Memorandum); and
(D) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and, assuming due execution and delivery by the Initial Purchasers, such agreement shall be in full force and effect.
(h) The Indenture shall have been duly executed and delivered by the Company and duly authorized, executed and delivered by the Trustee, and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(i) The Company shall have received from Hubcap Acquisition LLC or an affiliate thereof an equity investment equal to $108.0 million, pursuant to the Subscription Agreement.
(j) The Company shall have entered into the Credit Facilities for an aggregate borrowing of up to $275.0 million and each shall have delivered fully executed agreements with respect to the Credit Facilities. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory to the Initial Purchasers and, as to legal matters, to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers. The Company shall furnish you with such manually signed or conformed copies of its Subsidiaries have been duly incorporated such opinions, certificates, letters and is validly existing in good standing under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing documents as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveyou reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Accuride Corp)
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinon the date hereof and at the time of purchase (and the several obligations of the Initial Purchasers at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase (unless previously waived) and at the additional time of purchase, to as the case may be), the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchaser Company shall not have discovered furnish to you at the time of purchase and disclosed at the additional time of purchase, as the case may be, an opinion of Kirkland & Ellis, counsel for txx Xxxxxny, xxxxessed to the Initial Purchasers and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies thereof for each of the other Initial Purchasers and in form satisfactory to Cahill Gordon & Reindel, cxxxxxx xxx xxe Ixxxxxx Purchasers, substantially in the form of Exhibit B hereto.
(b) The Company on or prior shall furnish to you at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Robert F. Wrobel, Vice Presidenx xxx Xxxxx Xxxxl Officer for the Company, addressed to the Closing Date Initial Purchasers and dated the time of purchase or the additional time of purchase, as the case may be, in form satisfactory to Cahill Gordon & Reindel, counsex xxx xxx Xxxtiax Xxxxxasers, substantially in the form of Exhibit C hereto. (c) You shall have received from Coopers & Lybrand L.L.P. cxxxxxx letxxxx xxted, respectively, as of the date of this Agreement and the time of purchase and additional time of purchase, as the case may be, and addressed to the Initial Purchasers in the forms heretofore approved by the Initial Purchasers.
(d) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Cahill Gordon & Reindel, counsex xxx xxx Xxxtiax Xxxxxasers, dated the time of purchase or the additional time of purchase, as the case may be. In addition, such counsel shall state that such counsel have participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent public accountants of the Company and representatives of the Initial Purchasers at which the contents of the Offering Memorandum and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or any amendment or supplement thereto contains fairness of the statements contained in the Offering Memorandum (except as to the matters referred to under paragraph 7 of Exhibit B), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), no facts have come to the attention of such counsel which lead them to believe that the Memorandum contained an untrue statement of a material fact which, in the opinion of Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial Purchaser, is material or omits omitted to state a material fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading or that the Offering Memorandum as of its date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the financial statements and schedules and other financial and statistical data included in the Offering Memorandum.
(e) The Company shall furnish to you at the time of purchase or the additional time of purchase, as the case may be, an opinion of McKenna & Cuneo, United States xxxxxxxory xxxxsel for the Company, addressed to the Initial Purchasers and dated the time of purchase or additional time of purchase, as the case may be, in form satisfactory to Cahill Gordon & Reindel, cxxxxxx xxx xxe Ixxxxxx Purchasers, stating that the descriptions in the Offering Memorandum of the statutes, regulations and legal or governmental proceedings or procedures relating to the Food and Drug Administration (the FDA) and the FDA approval process relating to the Company's or any of its Subsidiaries' products are accurate in all material respects and are a fair summary of those statutes, regulations, proceedings or procedures.
(f) The Company shall furnish to you at the time of purchase or the additional time of purchase, as the case may be, an opinion of Bird & Bird, the European Union regulatory counsel for the Company, addressed to the Initial Purchasers and dated the time of purchase or additional time of purchase, as the case may be, in form satisfactory to Cahill Gordon & Reindel, cxxxxxx xxx xxe Ixxxxxx Purchasers, stating that: (i) the descriptions under the heading "Business-Government Regulation" in the Offering Memorandum of the statutes, regulations and legal or governmental proceedings or procedures relating to the regulatory apparatus of the European Union and the approval process of the European Union are accurate in all material respects and are a fair summary of those statutes, regulations, proceedings or procedures; and (ii) the second sentence under the heading "Business- Government Regulation-General" in the Offering Memorandum has been reviewed by such counsel and is an accurate statement of the law of Norway.
(g) Prior to the time of purchase or the additional time of purchase, as the case may be, the Offering Memorandum shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(bh) All corporate proceedings and other legal matters incident to Between the authorization, form and validity time of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to execution of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory time of purchase or the additional time of purchase, as the case may be, (i) no material and unfavorable change, financial or otherwise (other than as referred to in all material respects to counsel for the Initial PurchaserOffering Memorandum), and in the business, condition or prospects of the Company and its Subsidiaries taken as a whole shall occur or become known and (ii) no transaction which is material and unfavorable to the Subsidiary Guarantors Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersbeen entered into by the Company or any of its Subsidiaries.
(c) Kaye Xxxxxxx XXX shall have furnished to the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that:
(i) The Company will, at the time of purchase or the additional time of purchase, as the case may be, deliver to you a certificate of its chief financial officer to the effect that the representations and warranties of the Company set forth in this Agreement and the conditions set forth in paragraph (h) and paragraph (i) have been met and are true and correct as of each such date.
(j) You shall have received copies of each of the agreements referred to in Section 3(t).
(k) The Control Agreement shall be in full force and effect.
(l) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Offering Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as you may reasonably request.
(m) The Company shall perform such of its Subsidiaries obligations under this Agreement as are to be performed by the terms hereof at or before the time of purchase and at or before the additional time of purchase, as the case may be.
(n) The Notes and the Shares shall have been duly incorporated designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase.
(o) Between the time of execution of this Agreement and the time of purchase or additional 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) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company or any subsidiary of the Company by any "nationally recognized statistical rating organization", as that term is validly existing defined in good standing Rule 436(g)(2) promulgated under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveAct. 8.
Appears in 1 contract
Samples: Purchase Agreement (Alpharma Inc)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company and the Subsidiary Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchaser Purchasers shall not have discovered and disclosed to the Company 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 Clifxxxx Xxxnce Rogexx & Xellx XXXClifford Chance US LLP, counsel for the Initial PurchaserPurchasers, is material or omits materxxx xx xmits 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.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 NotesSeries A Preferred Stock, the Registration Rights Agreement 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 PurchaserPurchasers, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX Scholer LLP shall have furnished to the Initial Purchaser Purchasers its written opinionxxxxxxx xxxxion, as counsel to the Company, addressed to the Initial Purchaser Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers, to the effect that:
(i) The Company and each of its Significant Subsidiaries have been duly incorporated and is are validly existing in good standing under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction set forth in an attachment to such opinion;
(ii) The Company has an authorized capitalization as set forth in or incorporated by reference in the Offering Memorandum, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the description thereof contained or incorporated by reference in the Offering Memorandum; and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued and are fully paid, non-assessable and (except for directors' qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims and none of such shares of capital stock was issued in violation of preemptive or other similar rights arising by operation of the Delaware General Corporation Law, under the charter and bylaws of the Company or under any agreement known to such counsel to which their the Company or any subsidiary is a party, as set forth in an attachment to such opinion;
(iii) The shares of Series A Preferred Stock to be delivered on the Closing Date and the Registered Preferred Stock to be issued pursuant to the Exchange Offer have been duly and validly authorized, and the shares of Series A Preferred Stock to be delivered on the Closing Date have been duly and validly issued, fully paid and nonassessable, have not been issued in violation of or subject to any preemptive or similar rights arising under the charter or bylaws of the Company or under any agreement known to such counsel to which the Company or any subsidiary is a party, and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except that certain of the remedies therein contained may not be enforceable or be subject to available defenses and procedural requirements which are not necessarily reflected therein. The form of stock certificate used to represent the shares of Series A Preferred Stock is in due and proper form and complies with the Delaware General Corporation Law;
(iv) When the shares of Series A Preferred Stock are issued and delivered pursuant to the Agreement, such Series A Preferred Stock will not be of the same class (within the meaning of Rule 144A under the Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;
(v) No registration under the Act of the Series A Preferred Stock is required for the sale of the Series A Preferred Stock to you as contemplated hereby or for the Exempt Resales (assuming (i) that the Eligible Purchasers who buy the Series A Preferred Stock in the Exempt Resales are QIBs or persons who acquire the Series A Preferred Stock in an "offshore transaction" and is not a "U.S. Person" (within the meaning of Regulation S under the Act) and (ii) the accuracy of your representations and those of the Company regarding the absence of general solicitation in connection with the Exempt Resales contained herein;
(vi) The Series A Preferred Stock conforms in all material respects to the descriptions thereof contained in the Offering Memorandum and the Certificate of Designations. The Certificate of Designations and the Registration Rights Agreement conform in all material respects to the respective ownership description thereof contained in the Offering Memorandum. The forms of Exchange Notes and Subsidiary Guarantees conform in all material respects to the descriptions thereof contained in the Offering Memorandum and the Exchange Notes Indenture. The Exchange Notes Indenture conforms in all material respects to the description thereof contained in the Offering Memorandum;
(vii) The Certificate of Designations has been duly authorized by all necessary corporate and stockholder action and has been duly executed by the Company, filed with and accepted for record by, the Secretary of State of the State of Delaware;
(viii) To the best of such counsel's knowledge and other than as set forth in the Offering Memorandum (including by incorporation by reference), there are no legal or lease governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the conduct Company or any of their respectiveits subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, might have a Material Adverse Effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(ix) To the best of such counsel's knowledge, no order or decree preventing the use of the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been issued and no proceeding for that purpose has commenced, is pending or is threatened by the Commission;
(x) The statements contained in the Offering Memorandum under the captions "Risk Factors--Risks Related to the Series A Preferred Stock, the Exchange Notes and this Offering--Actual or constructive distributions with respect to our Series A preferred stock and exchange notes may lead to unplanned deemed dividend income and original issue discount"; "-- Corporate holders of the Series A preferred stock will not continue to be eligible for the dividends-received deduction after a certain time"; "--A court could subordinate or void the subsidiary guarantees of the exchange notes in circumstances of a fraudulent transfer under federal or state laws"; "-- A court may void the issuance of the exchange notes in circumstances of a fraudulent transfer under federal or state laws;" "-- Risk Factors--Risks Related to our Business--Our business depends on maintaining our FCC licenses. We cannot assure you that we will be able to maintain these licenses"; "--We may face regulatory review for additional acquisitions in our existing markets and, potentially, new markets"; "Description of Business--Antitrust"; "Description of Business--Federal Regulation of Radio Broadcasting"; "Description of Indebtedness"; "Description of Capital Stock"; "Description of Business--FCC Licenses"; "Description of Business--Environmental Matters"; "Description of Business--Legal Proceedings"; " Description of Capital Stock"; "Description of Indebtedness"; "Description of Business--Recent Developments"; "Description of the Series A Preferred Stock and Exchange Notes"; "Certain Material U.S. Federal Income Tax Consequences"; "ERISA Considerations"; and the statements contained in the Company's Annual Report on Form 10-K for the fiscal year ended December 29, 2002 under the captions "Executive Compensation--Employment Agreement and Arrangements"; "Executive Compensation--Stock Plans"; "Executive Compensation--401(K) Plan"; and "Executive Compensation--Limitation on Directors' and Officers' Liability"; insofar as they describe contracts, agreements or other legal documents or they describe federal statutes, rules and regulations, constitute a fair summary thereof;
Appears in 1 contract
Samples: Purchase Agreement (Spanish Broadcasting System Inc)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser hereunder are to purchase and pay for the Notes as provided herein, shall be subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties of the Company contained hereinand the Guarantor herein contained, as of the date hereof and as of the Closing Date, to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchaser or to Initial Purchaser's Counsel pursuant to this Section 7 of any material -20- 21 misstatement or omission, to the performance by each of the Company and the Subsidiary Guarantors Guarantor of their respective its obligations hereunder, and to each of the following additional terms and conditions:
(a) The a. At the Closing Date the Initial Purchaser shall not have discovered received an opinion (customary for transactions such as this Offering and disclosed in form and substance satisfactory to the Company 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 Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial Purchaser and Initial Purchaser's Counsel) of Riorxxx & XcKixxxx, is material or 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.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement 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 xxunsel for the Initial Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX shall have furnished to the Initial Purchaser its written opinionGuarantor, as of Adamx & Xeesx, Xxuisiana counsel to the Company, Eatox & Xottxxxx, Xxssissippi counsel to the Company, and Richxxxx & X'Neil, New York counsel to the Company, each addressed to the Initial Purchaser and dated the Closing Date, .
b. All proceedings taken in connection with the sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Initial Purchaser and to Initial Purchaser's Counsel, and the Initial Purchaser shall have received from said Initial Purchaser's Counsel a favorable opinion, dated the Closing Date with respect to the issuance and sale of the Notes, the Offering Memorandum and such other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to Initial Purchaser's Counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(I) As of the date hereof and as of the Closing Date, the representations and warranties of the Company and the Guarantor set forth in Section 2 hereof are accurate, (ii) as of the Closing Date, the obligations of the Company to be performed hereunder on or prior thereto shall have been duly performed, (iii) subsequent to the respective dates as of which information is given in the Offering Memorandum, the Company and its Subsidiaries shall not have sustained any material loss or interference with its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any Material Adverse Change, or any development involving a prospective Material Adverse Change, (iv) (A) as of the Closing Date, the Offering Memorandum shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the date of the Offering Memorandum no event shall have occurred as a result of which it is necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) no action shall have been taken and, to the best knowledge of each of the Company and the Guarantor, no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, have a Material Adverse Effect; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of each of the Company and the Guarantor, threatened against, the Company, its Subsidiaries or the Guarantor, before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would result in a Material Adverse Effect; and no stop order preventing the use of the Offering Memorandum, or any amendment or supplement thereto or any order asserting that any of the transactions contemplated by this Agreement or subject to the registration requirements of the Securities Act shall have been issued. The Initial Purchaser shall have received a certificate, -21- 22 in form and substance satisfactory to the Initial Purchaser, confirming, as of the Closing Date, the matters set forth in this paragraph (d).
d. At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter from Arthxx Xxxexxxx, XXP, independent accountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date, addressed to the effect that:Initial Purchaser in form and substance satisfactory to the Initial Purchaser.
e. Prior to the Closing Date, the Company shall have furnished to the Initial Purchaser or the Initial Purchaser's Counsel such further information, certificates and documents as the Initial Purchaser or the Initial Purchaser's Counsel may reasonably request.
f. At the Closing Date, the Notes shall have been approved for quotation in the PORTAL market.
g. The Company, to the extent applicable, the Guarantor and each of the other parties thereto (iother than the Initial Purchaser) shall have executed and delivered the Transaction Documents and the Initial Purchaser shall have received fully executed copies thereof. Assuming the execution and delivery by the Initial Purchaser of the Transaction Documents, such documents shall be in full force and effect. The Company shall have received the requisite governmental and regulatory approval in connection with each of the Transaction Documents and the transactions contemplate by the Offering Memorandum to be completed on or before the Closing Date.
h. The Initial Purchaser shall have received (I) certificate of the Secretaries of the Company, each of its Subsidiaries have been duly incorporated and is validly existing the Guarantor, dated the Closing Date and in form and substance satisfactory to the Initial Purchaser, certifying as true, accurate and complete, the by-laws, resolutions with respect to the transactions contemplated herein and incumbency of certain officers; and (ii) certified articles of organization or formation issued as of a recent date by the Secretary of State of the state of organization of the Company and the Guarantor; and (iii) appropriate certificates of qualification to do business and of good standing under standing, issued on a recent date by the laws Secretary of their respective jurisdictions State of incorporationeach jurisdiction, each is duly if any, in which the failure of the Company, any of its Subsidiaries or the Guarantor, as the case may be, to be qualified to do business would have a Material Adverse Effect.
i. On the Closing Date, the Initial Purchaser shall have received certificates of solvency, giving effect to the offering of the Series A Notes contemplated hereby, signed by the chief executive officer and are chief financial officer of each of the Company and the Guarantor substantially in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectiveform previously approved by the Initial Purchaser.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and again on the Closing DateDate (as if made again on and as of such date), of the representations and warranties of the Company contained herein, to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchaser shall not have discovered and disclosed to the Company on or prior to the 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 Clifxxxx Xxxnce Rogexx Latham & Xellx XXXWatkins, counsel for the Initial PurchaserPurchasers, is material or omits to materxxx xr omxxx 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 statements, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notesother Operative Documents, the Registration Rights Agreement and Acquisition Documents, the Credit 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 Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersPurchasers.
(c) Kaye Xxxxxxx XXX Simpson Thacher & Bartlett shall have furnished to the Initial Purchaser Initiax Xxxxxxxxxx, its written xxxxxxx opinion, as counsel to the Company, addressed to the Initial Purchaser Purchasers and dated as of the Closing Date, in the form of Exhibit C hereto:
(d) Fried, Frank, Harris, Shriver & Jacobson shall have furnished to the Initial Purchasexx, xxx wrixxxx xxinion, as counsel to the Company, addressed to the Initial Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers and their counsel, to the effect that:
(i) The None of the issuance, offer or sale of the Series A Notes, the execution, delivery or performance by the Company of this Agreement or the other Operative Documents, compliance by the Company with the provisions hereof or thereof nor consummation by the Company of the transactions contemplated hereby or thereby; none of the execution, delivery or performance by the Company of the Credit Agreement or the other Credit Documents, compliance by the Company with the provisions thereof nor consummation by the Company of the transactions contemplated thereby; and each none of the execution, delivery or performance by the Company of the Transaction Agreement or the other Acquisition Documents, compliance by the Company with the provisions thereof nor consummation by the Company of the transactions contemplated thereby (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official having authority over government procurement matters (except for those governmental authorizations identified in the Transaction Agreement) or (ii) conflicts or will conflict with or constitutes or will constitute a material breach of, or a material default under any material government procurement contract (limited to our review of the contracts set forth on Exhibit A) or will violate any law, statute, ordinance, governmental rule or regulation regarding U.S. government procurement matters to which it or its property or assets may be subject or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument (limited to our review of the contracts set forth on Exhibit A) to which it is a party or by which it may be bound or to which any of its Subsidiaries have been duly incorporated property or assets is subject pursuant to any government procurement contract.
(ii) The statements under the caption "Risk Factors -- Risks Inherent in Government Contracts" in the Offering Memorandum, insofar as they are statements of law or legal conclusions with respect to government procurement contracts (which statements are identified on Exhibit B), are accurate in all material respects and is validly existing in good standing under present fairly the information shown. The opinion of such counsel may be limited to the laws of their respective jurisdictions the state of incorporationNew York, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease the federal laws of property or the conduct of their respectiveUnited States.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of each of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on and as of the date hereof and on the Closing Date, Date of the representations and warranties of the Company and each of the Guarantors contained herein, to the performance by the Company and each of the Subsidiary Guarantors of their respective covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchaser Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Time of Sale Information or the Offering Memorandum Memorandum, or any amendment or supplement thereto thereto, contains an untrue statement of a fact which, in the opinion of Clifxxxx Xxxnce Rogexx Xxxxxx & Xellx XXXXxxxxx LLP, counsel for to the Initial PurchaserPurchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein therein, in the light of the circumstances then prevailing, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 NotesSecurities, the Registration Rights Agreement Guarantees, the Operative Documents, the Indenture, the Time of Sale Information 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 PurchaserPurchasers, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX Xxxxx Xxxxx LLP shall have furnished to the Initial Purchaser Purchasers its written opinion, as counsel to the CompanyCompany and the Guarantors, addressed to the Initial Purchaser Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial PurchaserPurchasers, substantially in the form of Exhibit A hereto.
(d) Xxxxx Xxxxxxx, General Counsel of the Company shall have furnished to the effect that:Initial Purchasers his written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit B hereto.
(e) Xxxx Xxxx, Executive Vice President, Chief Financial Officer and Treasurer of the Company shall have furnished to the Initial Purchasers a certificate, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit C hereto.
(f) The Initial Purchasers shall have received from Xxxxxx & Xxxxxx 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 Time of Sale Information, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Initial Purchasers shall have received from Deloitte & Touche 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 Commission 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 Time of Sale Information, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of Deloitte & Touche LLP, referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Initial Purchasers a “bring-down letter” of such accountants, addressed to the Initial Purchasers and dated the 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, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Time of Sale Information or the Offering Memorandum, as of a date not more than three days prior to the date of the Closing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter
(i) Except as described in the Time of Sale Information and the Offering Memorandum, (i) neither the Company, any Guarantor nor any of their respective subsidiaries shall have sustained, since the date of the latest audited financial statements included and incorporated by reference in the Time of Sale Information and the Offering Memorandum, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, there shall not have been any change in the capital stock or long-term debt of the Company, any Guarantor or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the business, properties, prospects, financial condition, stockholders’ equity or results of operations of the Company, the Guarantors and their respective subsidiaries, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Offering Memorandum.
(j) At the time of execution of this Agreement, the Initial Purchasers shall have received from the Company Reservoir Engineer an initial letter (an “initial expert letter”), in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, confirming that they are independent with respect to the Company and stating the conclusions and findings of such firm with respect to matters pertaining to the Company’s use of the reports of proved reserves from the Company Reservoir Engineer.
(k) The Company and each Guarantor shall have furnished or caused to be furnished to the Initial Purchasers dated as of the Closing Date a certificate of the Chief Executive Officer and Chief Financial Officer of the Company and each Guarantor, or other officers satisfactory to the Initial Purchasers, as to such matters as the Representative may reasonably request, including, without limitation, a statement that:
i. The representations, warranties and agreements of the Company and the Guarantors in Section 3 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
ii. They have examined the Time of Sale Information and the Offering Memorandum, and, in their opinion, (A) the Time of Sale Information, as of the Applicable Time and as of the Closing Date, and the Offering Memorandum, as of its Subsidiaries date and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the date of the Time of Sale Information and the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Time of Sale Information and the Offering Memorandum.
(l) Subsequent to the earlier of the Applicable Time and the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as such term is used in Section 15E of the Exchange 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 issued or guaranteed by the Company or any of the Guarantors (in each case, other than an announcement with positive implications of a possible upgrading).
(m) The Securities shall be eligible for clearance and settlement through DTC.
(n) The Initial Purchasers shall have received conformed counterparts of the Security Agreement that shall have been executed and delivered by duly incorporated authorized officers of each party thereto, in form and is validly existing substance reasonably satisfactory to the Representative.
(o) The Initial Purchasers shall have received conformed counterparts of the Intercreditor Agreement that shall have been executed and delivered by duly authorized officers of each party thereto, in good standing under form and substance reasonably satisfactory to the laws of their respective jurisdictions of incorporationRepresentative.
(p) Except as otherwise contemplated by the Security Agreement, each is duly qualified document (including any Uniform Commercial Code financing statement) required by the Security Agreement, or under law or reasonably requested by the Representative, in each case, to do business be filed, registered or recorded, or delivered for filing on or prior to the Closing Date, for the benefit of the holders of the Securities, a perfected second-priority lien and security interest in the Personal Property Collateral that can be perfected by the making of such filings, registrations or recordations, prior and superior to the right of any other person (other than Permitted Liens), shall be executed and in proper form for filing, registration or recordation.
(q) On or prior to the Closing Date, the Initial Purchasers shall have received satisfactory evidence that the Company and the Guarantors maintain insurance with respect to the Collateral as specified by the Security Agreement.
(r) The Securities and the notation of guarantees shall be executed by the Company and the Guarantors in substantially the respective forms set forth in the Indenture and the Securities shall be authenticated and delivered by the Trustee in accordance with the Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or form and substance reasonably satisfactory to counsel for the conduct of their respectiveInitial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers to purchase and pay for any issue of Initial Purchasers’ Notes hereunder are subject to the accuracyfollowing conditions:
(a) That, when made and on at the Closing Date, the Issuer shall furnish to the Initial Purchasers an opinion of Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP, as special counsel to the Issuer (or of such other counsel to the Issuer, including in-house counsel, as is reasonably acceptable to the Initial Purchasers) dated the Closing Date, in substantially the forms attached hereto as Exhibit A-1 and Exhibit A-2.
(b) That, at the Closing Date, the Initial Purchasers shall receive an opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the Initial Purchasers, 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 reasonably require.
(c) At the time of execution of this Agreement, the Initial Purchasers shall have received from Ernst & Young 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 auditors, (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 and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers.
(d) With respect to the letter of Ernst & Young 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 the Closing Date (i) confirming that they are independent auditors, (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 and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(e) That, at the Closing Date, the Issuer shall have furnished to the Initial Purchasers a certificate dated the Closing Date and signed by an officer of the general partner of the Issuer, to the effect set forth below. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(A) the representations and warranties of the Company Issuer contained hereinherein are true and correct in all material respects as if on and as of the Closing Date, and the Issuer has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied thereunder, to the performance by the Company and the Subsidiary Guarantors of their respective obligations hereunderextent a party thereto, and to each of the following additional terms and conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to the Company on at or prior to the Closing Date Date;
(B) The issuance and sale of the Notes by the Issuer hereunder has not been enjoined (temporarily or permanently) by any court or governmental body or agency;
(C) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or (B) any review for a possible change that does not indicate the Offering Memorandum or any amendment or supplement thereto contains an untrue statement direction of a fact whichpossible change, in the opinion rating accorded any of Clifxxxx Xxxnce Rogexx & Xellx XXXthe Issuer’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Act; and
(D) there has not occurred any material adverse change, counsel for the Initial Purchaser, is or any development which could reasonably be expected to result in a prospective material or omits to state a fact whichadverse change, in the opinion financial condition, or in the earnings, business or operations, of such counselthe Issuer, is material and is required to be stated therein or is necessary to make taken as a whole, from that set forth in the statements therein not misleadingOffering Memorandum.
(bf) All corporate proceedings and other legal matters incident to the authorization, form and validity of this AgreementThat, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby Issuer shall be reasonably satisfactory have performed in all material respects such of its obligations under this Agreement as are to counsel for be performed by the Initial Purchaser, and terms hereof at or before the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matterstime of purchase.
(cg) Kaye Xxxxxxx XXX The Offering Memorandum shall have furnished been printed and copies distributed to you not later than 9:00 A.M., New York City time, on January 18, 2005, or at such later date and time as you may approve in writing, and no stop order suspending the Initial Purchaser its written opinionqualification or exemption from qualification of the Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. All opinions, as counsel letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the Company, addressed to the Initial Purchaser and dated the Closing Date, provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) The Company and each of its Subsidiaries have been duly incorporated and is validly existing in good standing under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectivePurchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the each Initial Purchaser to purchase and pay for the Securities that it has severally agreed to purchase hereunder are subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties of the Company contained hereinherein and in certificates of any officer of the Company and any Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of their respective its obligations hereunder, and to each of the following additional terms and further conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to the Company on or prior to At the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement Time, each of you shall have received a fact which, in the signed opinion of Clifxxxx Xxxnce Rogexx each of Shearman & Xellx XXXSterling, counsel for the Initial PurchaserCompany, is material or omits to state a fact whichand Edmuxx Xxxxxxxx, Xxneral Counsel of the Company, in each case dated as of the Closing Time, in substantially the form attached hereto as Exhibit B-1. Such opinion of shall be to such counsel, is material and is required further effect with respect to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby sale of the Securities pursuant to this Agreement as counsel for the Initial Purchasers may reasonably request. 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 opinions of other counsel, who shall be reasonably counsel satisfactory in all material respects to counsel for the Initial PurchaserPurchasers, and in which case the opinion shall state that they believe you are entitled to so rely. 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 Subsidiary Guarantors Subsidiaries and certificates of public officials; provided that such certificates have been delivered to the Initial Purchasers.
(b) At the Closing Time, each of you shall have furnished received a signed opinion of Lovexx Xxxxx Xxxrxxx, xxunsel to BEA(UK) and FEEL, dated as of 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 all documents and information that they for the Initial Purchasers may reasonably request to enable them to pass upon such mattersrequest.
(c) Kaye Xxxxxxx XXX At the Closing Time, each of you shall have furnished received a signed opinion of Trenite Van Doorne, counsel to Royal Inventum, dated as of 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 you shall have received the favorable opinion of Fried, Frank, Harris, Shrixxx & Xacoxxxx, xxunsel 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 you, 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 you may require. 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 you. 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; provided that such certificates have been delivered to the Initial Purchaser its written opinionPurchasers.
(e) At the Closing Time, (i) the Offering Memorandum, as counsel it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum, any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, addressed threatened against the Company or any Subsidiary that would be required to be set forth in the Offering Memorandum other than as set forth therein and no proceedings shall be pending or, to the Initial Purchaser knowledge of the Company, threatened against the Company or any Subsidiary before or by any government, governmental instrumentality or court, domestic or foreign, that could result in any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and dated its subsidiaries, considered as one enterprise, other than as set forth in the Offering Memorandum, (iv) the Company shall have in all material respects complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing DateTime, (v) no event of default shall exist under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or to which the Company or any Subsidiary is subject and (vi) the other representations and warranties of the Company set forth herein shall be accurate in all material respects as though expressly made at and as of the Closing Time. At the Closing Time, each of you shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Closing Time, to such effect.
(f) At the time that this Agreement is executed by the Company, each of you shall have received from Deloitte & Touche L.L.P., independent auditors for the Company, a letter, dated such date, in form and substance reasonably satisfactory to the Initial Purchaseryou, confirming that they are independent public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations thereunder, and stating in effect that:
(i) The in their opinion, the audited financial statements related to the Company and its consolidated subsidiaries and the related financial statement schedules included in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related published rules and regulations thereunder;
(ii) on the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim consolidated financial statements of the Company included in the Offering Memorandum, a reading of the minutes of all meetings of the stockholders and directors of the Company and the Audit, Stock Option and Compensation, and Pricing Committees of the Company's Board of Directors since February 22, 1997 (except for those meetings for which minutes have not yet been provided, in which case minutes for such meetings in draft form have been read) inquiries of certain officials of the Company and its subsidiaries responsible for financial and accounting matters, a review in accordance with procedures established by the American Institute of Certified Public Accountants (the "AICPA") with respect to the nine-month periods ended November 29, 1997 and November 30, 1996 performed at the request of the Company, and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements for the Company and its consolidated subsidiaries for the nine-month periods ended November 29, 1997 and November 30, 1996 included in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related published rules and regulations or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Offering Memorandum;
(B) at December 27, 1997 and at a specified date not more than five days prior to the date of this Agreement, there was any change in the capital stock of the Company or any increase in the consolidated long-term debt of the Company and its subsidiaries, in each case as compared with amounts shown in the latest balance sheet included in the Offering Memorandum, except in each case for changes, decreases or increases that the Offering Memorandum discloses have occurred or may occur; or
(C) for the period from the date of the latest financial statement included in the Offering Memorandum to a specified date prior to the date of this Agreement, there was any decrease in consolidated net sales, operating earnings, net earnings or net earnings per share of the Company and its subsidiaries, in each case as compared with the comparable period in the preceding year, except in each case for any decreases that the Offering Memorandum discloses have occurred or may occur;
(iii) based on a comparison of the information included under the heading "Selected Financial Information" with the requirements of Item 301 of Regulation S-K and inquiries of certain officials of the Company who have responsibility for financial and accounting matters whether this information conforms in all material respects with the disclosure requirements of Item 301 of Regulation S-K, nothing came to their attention as a result of the foregoing procedures that caused them to believe that this information does not conform in all material respects with the disclosure requirements of item 301 of Regulation S-K; and
(iv) in addition to the procedures referred to in clause (ii) above, they have performed other specified procedures, not constituting an audit, with respect to certain amounts, percentages, numerical data and financial information appearing in the Offering Memorandum appearing in the Offering Memorandum, including the Selected Financial Information, which have previously been specified by you and which shall be specified in such letter, and have compared certain of such items with, and have found such items to be in agreement with, the accounting and financial records of the Company and its subsidiaries.
(g) At the Closing Time, each of its Subsidiaries you shall have received from Deloitte & Touche L.L.P. a letter, in form and substance satisfactory to you and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 5(f), except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Time, there shall not have been duly incorporated and any downgrading in the rating accorded any of the Company's securities, including the Securities, by any "nationally recognized statistical rating organization," as such term is validly existing in good standing defined for purposes of Rule 436(g)(2) under the laws 1933 Act, nor shall such rating organization have publicly announced that it has under surveillance or review, with possible negative implications, its rating of their respective jurisdictions any of incorporationthe Company's securities, each is duly qualified including the Securities.
(i) At the Closing Time, counsel for the Initial Purchasers shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to do business pass upon the issuance and are sale of the Securities as contemplated in good standing as a foreign corporation this Agreement and the matters referred to in each jurisdiction Section 5(d) and in which their respective ownership order to evidence the accuracy and completeness of any of the representations, warranties or lease statements of property the Company, the performance of any of the covenants of the Company, or the conduct fulfillment of their respectiveany of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Securities as contemplated in this Agreement shall be reasonably satisfactory in form and substance to the Initial Purchasers and to counsel for the Initial Purchasers.
(j) At the Closing Time, the Registration Rights Agreement shall have been fully executed and be in full force and effect.
(k) At or prior to the Closing Time, the Company shall have entered into an amendment of the Company's Third Amended and Restated Credit Agreement, amended and restated as of May 29, 1997, as further amended on November 19, 1997, in the form previously delivered to counsel for Merrxxx Lyncx xx behalf of the Initial Purchasers, to permit the consummation of the Tender Offer and Consent Solicitation on the terms described in the Offer to Purchase and the consummation of the transactions contemplated hereby. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by you on notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party, except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made accuracy of the warranties and representations on the Closing Date, of the representations and warranties part of the Company contained hereinon the date hereof, at the Applicable Time and at the Time of Purchase and to the performance by the Company and the Subsidiary Guarantors of their respective obligations hereunder, and to each of the following additional terms and other conditions:
(a) The Initial Purchaser That all legal proceedings to be taken and all legal opinions to be rendered in connection with the issue and sale of the Senior Notes shall not have discovered be satisfactory in form and disclosed substance to Hunton Xxxxxxx Xxxxx LLP, counsel to the Company 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 Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial Purchaser, is material or 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 misleadingPurchasers.
(b) All corporate proceedings and other legal matters incident to That, at the authorization, form and validity Time of this AgreementPurchase, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby Representatives shall be reasonably satisfactory in all material respects to counsel furnished with the following opinions, dated the day of the Time of Purchase, with conformed copies or signed counterparts thereof for the other Initial PurchaserPurchasers, and with such changes therein as may be agreed upon by the Company and the Subsidiary Guarantors shall have furnished Representatives with the approval of Hunton Xxxxxxx Xxxxx LLP, counsel to such the Initial Purchasers:
(1) Opinion of Xxxxxx X. Xxxxxxxxxx, Esq. or Xxxxxxx X. Xxxxxxx, Esq., counsel all documents to the Company, substantially in the form heretofore previously provided to the Initial Purchasers;
(2) Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special tax counsel to the Company, substantially in the form heretofore previously provided to the Initial Purchasers;
(3) Opinion and information that they may reasonably request negative assurance letter of Hunton Xxxxxxx Xxxxx LLP, counsel to enable them the Initial Purchasers, substantially in the forms heretofore previously provided to pass upon such mattersthe Initial Purchasers.
(c) Kaye Xxxxxxx XXX That the Representatives shall have furnished to received on the Initial Purchaser its written opinion, as counsel to date hereof and shall receive at the Company, addressed to the Initial Purchaser and Time of Purchase letters from:
(1) Deloitte & Touche LLP (i) dated the Closing Datedate hereof and (ii) dated the date of the Time of Purchase, respectively, in form and substance reasonably satisfactory to the Representatives (which may refer to the letter previously delivered to the Representatives, as applicable) (x) confirming with respect to the Company, during the period covered by the financial statements on which they reported, they were an independent registered public accounting firm within the meaning of the Act and the applicable published rules and regulations of the Securities and Exchange Commission (the “Commission”) and the Public Company Accounting Oversight Board (United States) thereunder, and (y) covering as of a date not more than three business days prior to the date of each such letter, as applicable, such other matters as the Representatives reasonably request; and
(2) PricewaterhouseCoopers LLP (i) dated the date hereof and (ii) dated the date of the Time of Purchase, respectively, in form and substance satisfactory to the Representatives (which may refer to the letter previously delivered to the Representatives, as applicable) (a) confirming with respect to the Company that they are independent auditors with respect to the Company within the meaning of the Act and the applicable published rules and regulations of the Commission and the Public Company Accounting Oversight Board (United States) thereunder, and (b) covering as of a date not more than three business days prior to the date of each such letter, as applicable, such other matters as the Representatives reasonably request.
(d) That no amendment or supplement to the Pricing Disclosure Package, the Offering Memorandum or Supplemental Written Offering Materials prior to the Time of Purchase shall contain material information substantially different from that contained in the Pricing Disclosure Package, the Offering Memorandum or Supplemental Written Offering Materials which is unsatisfactory in substance to the Representatives or unsatisfactory in form to Hunton Xxxxxxx Xxxxx LLP, counsel to the Initial PurchaserPurchasers.
(e) That, from the date hereof to the Time of Purchase, there shall not have been any material adverse change in the business, properties or financial condition of the Company from that set forth in the Preliminary Offering Memorandum or the Offering Memorandum (other than changes referred to in or contemplated by the Preliminary Offering Memorandum), and that the Company shall, at the Time of Purchase, have delivered to the Initial Purchasers a certificate of the Treasurer or an Assistant Treasurer of the Company to the effect that:, to the best of his or her knowledge, information and belief, there has been no such change.
(if) The That, at the Time of Purchase, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and each the Representatives.
(g) That the Company shall have performed such of its Subsidiaries have been duly incorporated and is validly existing in good standing obligations under this Agreement as are to be performed at or before the laws Time of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or Purchase by the conduct of their respectiveterms hereof.
Appears in 1 contract
Samples: Purchase Agreement (AEP Texas Inc.)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchaser Purchasers hereunder are subject to the accuracy, when made on and on as of the date hereof and the Closing Date, of the representations and warranties of the Company Company, the Issuer and USGP contained herein, to the accuracy of the statements of the Company, the Issuer and USGP and its officers made in any certificates delivered pursuant hereto, to the performance by the Company Company, the Issuer and the Subsidiary Guarantors USGP of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) Each of Xxxxxxx Xxxxxxx & Xxxxxxxx, Xxxxxxxx Chance and Xxxxxxxx, Xxxxxx & Finger shall have furnished to the Initial Purchasers their written opinion, as counsel to the Issuer, the Company and USGP, respectively, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(b) Xxxx Xxxxxxxx, General Counsel to the Company, and Xxxxxxx Xxxxxx, head of the Company's U.K. legal department, shall have furnished to the Initial Purchasers written opinions addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(c) The Initial Purchaser Purchasers shall have received from Cravath, Swaine & Xxxxx, 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 request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Initial Purchasers a letter (the "INITIAL LETTER") of Ernst & Young LLP, addressed to the Initial Purchasers and dated the date hereof, in form and substance reasonably satisfactory to the Initial Purchasers.
(e) The Company shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of Ernst & Young LLP, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Company and its Subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down 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 (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letter.
(f) Each of the Company, the Issuer and USGP shall have furnished to the Initial Purchasers a certificate or certificates, dated the Closing Date, of Xxxxxxx Xxxxxx, Company Secretary of the Company, Xxxxxx Xxxxxxxx, Group Finance Director of the Company and Xxxx Xxxxxxxx, Senior Vice President, Secretary and General Counsel of the Issuer, stating that (A) such officers have carefully examined the Offering Memorandum and to the extent deemed advisable by such officers, have discussed portions of the Offering Memorandum with officers of the Company or the Issuer having responsibility for the matters in question, including, when appropriate, Xxxx Xxxxx, the Executive Chairman of the Company, (B) in their opinion, the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C) as of the Closing Date, the representations and warranties of the Company, the Issuer and USGP in this Agreement are true and correct in all material respects, each of the Company, the Issuer and USGP, as the case may be, 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, and subsequent to the date of the most recent financial statements contained in the Offering Memorandum, there has been no event or development that can reasonably be expected to result in a Material Adverse Effect.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company, the Issuer and USGP and, assuming due execution and delivery by the Initial Purchasers, such agreement shall be in full force and effect.
(h) The Indenture shall have been duly executed and delivered by the Company, the Issuer and USGP and duly authorized, executed and delivered by the Trustee, and the Securities shall have been duly executed and delivered by the Issuer and duly authenticated by the Trustee.
(i) If any event shall have occurred that requires the Company under Section 4(c) 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.
(j) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Securities as contemplated hereby.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any event or development that can reasonably be expected to result in a Material Adverse Effect or any change specified in the letters referred to in paragraphs (d) and (e) of this section, the effect of which, in any such case described above, is, in the 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).
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(m) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Securities or any of the Issuer's or the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its rating of the Securities or any of the Issuer's, the Company's or USGP's other debt securities or preferred stock.
(n) 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 London Stock Exchange, the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of the Issuer, the Company or USGP on any exchange or in the over-the-counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by United Kingdom or United States federal or New York state authorities or (iii) an outbreak or escalation of hostilities in the United States or the United Kingdom or a declaration by the United States or the United Kingdom of a national emergency or war or (iv) a material adverse change in general economic, political or financial conditions in the United States or the United Kingdom (or the effect of international conditions on the financial markets in the United States or the United Kingdom shall be such) the effect of which, in the case of this clause (iv), 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 the delivery of the Securities on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(o) 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 or following the date of this Agreement or at such other date and time as to which the Initial Purchasers may agree; and no stop order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(p) None of the Initial Purchasers shall have discovered and disclosed to the Company 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 Clifxxxx Xxxnce Rogexx & Xellx XXX, counsel for the Initial PurchaserPurchasers, is material or omits to state a any 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.
(bq) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, each of the 2009 Notes, the Registration Rights Agreement Transaction Documents and the Offering Memorandum, and all other legal matters relating to this Agreement the Transaction Documents and the transactions contemplated hereby thereby, shall be reasonably satisfactory in all material respects to counsel for the Initial PurchaserPurchasers, and the Company Company, the Issuer and the Subsidiary Guarantors USGP shall have furnished to such counsel the Initial Purchasers all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall have furnished be deemed to be in compliance with the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated the Closing Date, provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) The Company and each of its Subsidiaries have been duly incorporated and is validly existing in good standing under the laws of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectivePurchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the Initial Purchaser Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, accuracy of the representations and warranties on the part of the Company contained hereinCompany, to the Adviser and the Administrator on the date hereof and on the Closing Date and the performance by the Company Company, the Adviser and the Subsidiary Guarantors Administrator of their respective each of its obligations hereunder, hereunder and to each of the following additional terms and conditionsconditions precedent:
(a) The Initial Purchaser You shall not have discovered and disclosed to the Company received 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 Clifxxxx Xxxnce Rogexx Xxxxxxx Xxxxxxx & Xellx XXXXxxxxxxx LLP, outside counsel for the Company, the Adviser and the Administrator addressed to the Initial PurchaserPurchasers, is material or omits to state a fact whichand dated the Closing Date, in a form to the reasonable satisfaction of the Representatives. The opinion of such counsel, is material and is required to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP described in this Section 7(a) shall be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident rendered to the authorization, form Initial Purchasers at the request of the Company and validity of this Agreement, the 2009 Notes, the Registration Rights Agreement and the Offering Memorandum, and all other legal matters relating shall so state therein. In-house counsel to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchaser, and the Company and the Subsidiary Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Kaye Xxxxxxx XXX Adviser, shall have furnished to the Initial Purchaser Representatives, its written opinion, as counsel to dated the Company, Closing Date and addressed to the Initial Purchaser and dated the Closing DatePurchasers, in form and substance reasonably satisfactory to the Initial PurchaserRepresentatives.
(b) You shall have received from Ernst & Young LLP letters dated, respectively, the date of this Agreement and the Closing Date, and addressed to the effect that:Initial Purchasers (with reproduced copies for the Initial Purchasers) in the forms heretofore approved by the Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to (i) the consolidated financial statements and certain financial information pertaining to the Company contained in, or incorporated by reference in, the Preliminary Offering Memorandum and the Offering Memorandum, (ii) the consolidated financial statements and certain financial information pertaining to FBLC contained in, or incorporated by reference in, the Preliminary Offering Memorandum and the Offering Memorandum and (iii) the consolidated financial statements and certain financial information pertaining to Senior Loan Fund contained in, or incorporated by reference in, the Preliminary Offering Memorandum and the Offering Memorandum;
(c) You shall have received on the Closing Date, the opinion of Ropes & Gray LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect the sale of the Securities and other related matters as the Initial Purchasers may reasonably request.
(d) Between the Applicable Time and the Closing Date, the Offering Memorandum shall not contain an untrue statement of a material fact or 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 are made, not misleading.
(e) Between the Applicable Time and the Closing Date, 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 the Company, the Subsidiaries or the Adviser, taken as a whole shall occur or become known.
(i) The Company and each will, on the Closing Date, deliver to you a certificate of its Subsidiaries Chief Executive Officer and its Chief Financial Officer or Chief Accounting Officer in substantially the form attached as Exhibit A-1 hereto and (ii) the Adviser will, on the Closing Date, deliver to you a certificate of its Chief Executive Officer or the President and its Chief Financial Officer in substantially the form attached as Exhibit A-2 hereto.
(g) The Company will, on the date hereof and on the Closing Date, deliver to you a certificate of its Chief Financial Officer representing to certain financial and other matters in substantially the form attached as Exhibit A-3 hereto.
(h) The Company and the Trustee shall have executed and delivered the Third Supplemental Indenture and the Securities.
(i) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly incorporated authorized officer of the Company.
(j) Between the Applicable Time and is validly existing the Closing Date, there shall not have been any decrease in good standing the rating of any debt 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, and no such organization shall have publicly announced it has under the laws surveillance or review any such rating.
(k) The Company shall have furnished to you such other documents and certificates as you may reasonably request and as are customary for a transaction of their respective jurisdictions of incorporation, each is duly qualified to do business and are in good standing as a foreign corporation in each jurisdiction in which their respective ownership or lease of property or the conduct of their respectivethis type.
Appears in 1 contract
